TMI Blog2010 (1) TMI 955X X X X Extracts X X X X X X X X Extracts X X X X ..... onsider the following substantial question of law : Whether the Tribunal is right in law in setting aside the order of the Commissioner of Customs (General), cancelling the CHA licence and forfeiting the security deposit on account of violation of Regulation 14(d) 20(7) of the Customs House Agents Licensing Regulations (CHALR), 1984? Factual Matrix : 3. The factual matrix reveals that on the basis of report dated 8th June, 2001 received from the Central Intelligence Unit, New Custom House, Mumbai, the CHA licence was suspended vide Order No. 27/2001 and, thereafter, an enquiry was initiated to enquire into the charges framed against the respondent, a Custom House Agent (CHA for short). 4. The enquiry officer submitted his report dated 22nd December, 2003. After receipt of the said report, the Commissioner of Customs (General) finding it difficult to agree with the report of the enquiry officer issued notice to CHA dated 20th September, 2004 recording and indicating his disagreement with the findings of the enquiry officer in respect of charge Nos. 3 and 4 leading to the violation of Regulations 14(d) and 20(7) of the Customs House Agent Licensing Regulations, 1984 (CHALR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... E.L.T. 602 (Bom.) and C.C. (General), Mumbai v. East West Shipping Agency, 2007 (218) E.L.T. 360 (Bom.) followed by another judgment in the case of Commissioner of Customs (General), Mumbai v. Bharat Overseas Communicators, 2006 (199) E.L.T. 800 (Bom.) in support of his submissions. 10. Per contra, Mr. Shah, learned counsel appearing for the respondent- CHA urged that the enquiry officer has recorded detailed findings on each of the charges framed against the respondent-CHA holding that not a single charge was proved. Based on this preamble, Mr. Shah further built his submission to contend that the Commissioner has no power or authority under CHALR, 1984 to disagree with the findings and report of the enquiry officer. In order to support his submission, he brought to our notice the judgment of the Tribunal in the case of Narendra Forwarders P. Ltd. v. Commissioner of C.Ex., Mumbai, 2000 (118) E.L.T. 632 (Tri.); wherein the Tribunal held that the Commissioner of Customs was not competent to brush aside the enquiry report submitted by the enquiry officer and to order re-enquiry. Mr. Shah, thus, urged that there is no power in the Commissioner to disagree with enquiry officer issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pending or revoking licence under Regulation 21. - 1. The Commissioner shall issue a notice in writing to the Custom House Agent stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said agent to submit within such time as may be specified in the notice not being less than forty-five days, to the Assistant Commissioner of Customs or Deputy Commissioner of Customs nominated by him, a written statement of defence and also to specify in the said statement whether the Custom House Agent desires to be heard in person by the said Assistant Commissioner of Customs or Deputy Commissioner of Customs. 2. On receipt of the written statement from the Custom House Agent, or where no such statement has been received within the time-limit specified in the notice referred to in sub-regulation (1), the Assistant Commissioner of Customs may inquire into such of the grounds as are not admitted. 3. The Assistant Commissioner of Customs shall in the course of inquiry, consider such documentary evidence and take, such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings and he may also put ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ndings of the enquiry officer are against the CHA. The authority of the Commissioner in sub-regulation (7) comes into play only after the copy of the enquiry report is furnished to the CHA and his arguments thereupon are recorded. If the CHA is aggrieved by any decision or order passed under regulation 21 or sub-regulation (7) of Regulation 23, he may appeal under Section 129A of the Customs Act, 1962, to the Tribunal established under Section 129(1) of the Customs Act. 17. On the above premise, we have no hesitation to record that in the entire regulation there is no power or authority to the Commissioner to disagree with the report of the enquiry officer. As observed hereinabove, an action of any body or authority in excess of their power or in violation of the restrictions placed on their powers is ultra vires. The reason is that it goes to the root of the power of such authority and the declaration of nullity is the only relief that is granted to the aggrieved party. One more principle of law gets attracted in this case laid down by the Apex Court in the case of State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358; wherein the Court recognised principle that where a powe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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