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TMI Blog2014 (6) TMI 614X X X X Extracts X X X X X X X X Extracts X X X X ..... nt namely M/s. Sun Granite Exports Ltd., an EOU engaged in the business of export of granite slabs exported four containers which were cleared without any problem. The fifth container sent for export to the customs house after self sealed and stuffed by the company was opened by the customs department and it was found that the container had Red Sanders instead of granite slabs as declared. Red Sanders is a prohibited item and cannot be exported and the same was seized and proceedings have been initiated against the exporter as well as the appellants by the Customs Department in Kolkata and a show-cause notice has been issued which is yet to be adjudicated. In the meantime, the CBI also took up investigation and CBI has filed a charge sheet against one of the employees of the appellant. 2. While this being so, the appellants filed application for renewal of their custom house agent licence on 14.02.2014 and the Commissioner of Customs called for a report from all the custom houses where the appellants have conducted their business as CHA. Kolkata Commissionerate reported that the appellant had a blemished record. It was stated that one of the employees of the appellant had been cha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsequences of non-renewal, revocation and suspension of CHA licences are same. In this case however since the order was passed, the customs activity by the appellant have come to a standstill and more than 400 employees and 2000 contract labourers are idle and appellants have no revenue generation to foot the salary bill and other expenses in respect of the employees. As regards the Commissioners observation about non-disclosure of pending show-cause notice or charge sheet, he would submit that it was a bona fide action on the part of the appellant and not an intentional act. The appellant entertains a bona fide belief that since the application was submitted by their Bangalore office, they were required to disclose only pending proceedings at Bangalore as per their interpretation of the circular issued by Bangalore Customs Commissionerate. 4. Learned AR reiterates the reasons in the impugned order for non-renewal of the licence. He submits that the complaint is sufficient for non-renewal and there is no need that it should be proved. 5. We have considered the submissions made by both the sides. While considering this case, we have proceeded on the basis that even though it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the name of the transporter or in identifying the transporter. There is no statement implicating the appellants by any of the persons involved about their knowledge of the contents of the container. In the absence of any such evidence available on record, single instance of giving the wrong name of the transporter while applying for dock permit, may not be in contravention of any of the regulations prima facie. In the absence of any evidence to show that there was some deliberate attempt or knowledge or there was an element of negligence emerging from the facts, merely because the name of the transporter was given wrongly, it cannot be said that appellants have committed a grave offence which is how the Commissioner has described their offence. 7. The second point the Commissioner has chosen to discuss is the charge sheet filed by the CBI. In this case also the main point that the CBI has raised before the court is that the Assistant Manager who is being prosecuted had obtained a second bottle seal and the shipping line had already obtained one bottle seal for the transporter and therefore the activity of obtaining the second bottle seal is in criminal conspiracy with the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Commissionerate where the event took place has not initiated action at all. The Commissioner has observed that a plain reading of the above findings/allegations clearly brings out that the CHA knowingly involved himself in smuggling of red sanders and acted in a dishonest and fraudulent manner. The allegations are grave and serious. We reproduce the relevant paragraphs relating to CBI charge sheet and observations of the Commissioner hereunder: In pursuance to the said criminal conspiracy, Sh Pulak Dey, Assistant Manager, Assistant Manager (C&F), M/s. SDV International Logistics Ltd., on behalf of M/s. SDV International Logistics Ltd., (though its Director) dishonestly and fraudulently got another Bottle Seal No. 763826 on 19.02.2009 issued from the shipping line Samudera Shipping Line (I) Pvt. Ltd., while one bottle seal no. 763772 had already been got issued by the representative of the transporter from the shipping line. It was not the duty of the CHA on behalf of the exporter to either seal the container or accordingly issue any certificate to the effect of sealing of the container. In furtherance to the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alidity of the licence under sub-regulation (1), renew the licence for a further period of ten years from the date of expiration, if the performance of the licensee is found to be satisfactory with reference, inter alia, to the obligations specified in this regulation including the absence of instances of any complaints of misconduct'. 12.3. Thus, it is apparent that while considering the application for renewal of the licence, Commissioner of Customs has to take into consideration the performance of the licensee with reference, inter alia, to the obligations specified including the absence of instances of any complaints of misconduct. The present dispute revolves around the interpretation of the phrase absence of instances of any complaints of misconduct. It is the contention of the CHA that merely a complaint of misconduct cannot come in the way of renewal unless that complaint has been proved against them. In other words, the CHA is suggesting that the phrase 'instances of any complaints of misconduct' has to be read as 'instances of any complaints of proven misconduct'. 13.1. It is settled law that the statute ordinarily must be literally construed. In the case of Tata Cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The regulation speaks of only complaints of misconduct and in our opinion we cannot add word 'proven' to this which in our opinion would not be proper. Therefore we agree with the view taken by the Commissioner that the complaint need not be a proven complaint. 10. Commissioner also has relied upon Regulation 5(d) which requires an applicant for a licence to act as a Customs Broker in a Customs Station to prove to the satisfaction of the Commissioner that he has neither been convicted by a competent court for an offence nor any criminal proceeding is pending against him in any court of law. He has observed that it would not be appropriate if a customs licence is renewed when a criminal prosecution is pending. As observed by us above, there is no evidence to show that appellants had indeed, deliberately involved in this act and as regards their employee a charge sheet has been filed but whether it can be said that a criminal prosecution is pending against the firm is a question for which there is no answer. In this regard no statements were made nor it occurred to us to enquire. But even the Commissioner has not examined this aspect. But as we have already observed above, in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proven one. If they are proved against the appellants, the appellants claim itself would render the appellant liable for non renewal of licence. Under these circumstances, we consider it appropriate that the appeal has to be allowed with a condition that this decision would be purely temporary in nature subject to completion of the proceedings as a result of show-cause notice issued to the appellants. As regards charge sheet filed against the employee also, as and when the charge sheet gets completed and charges are framed by the court, based on the nature of charges framed and considering the issue of vicarious responsibility and the liability of the appellants as per the principles of vicarious responsibility, department will be free to reopen the issue relating to renewal of licence. To sum up, we are only setting aside the order of non renewal and not the proceedings for non renewal. Department will have liberty to start proceedings at an appropriate time in line with our observations above if and when matter reached to a certain stage in the court of law, or after the show cause notice issued under customs act reaches finality, the show-cause notice can be preceded further. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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