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2015 (9) TMI 453 - CESTAT BANGALORE

2015 (9) TMI 453 - CESTAT BANGALORE - 2015 (328) E.L.T. 161 (Tri. - Bang.) - Revocation of Customs Broker Licence - offence relating to smuggling of Red Sanders - whether revocation of licence of the customs broker, the appellant is correct considering the role of the appellant broker in clandestine export of Red sanders. - Held that:- The three actions of the appellant of failing to advice the client regarding affix of bottle seal no., obtaining dock permits and obtaining the second bottle seal .....

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one of the series of acts of the appellant to facilitate smuggling of red sanders. In fact the opposite would have been done if the intention was to facilitate smuggling of red sanders as observed by us earlier. The same applies for obtaining dock permit also.

The very fact that appellant simply obtained the dock permits and ignored the fact that the name was different gives a feeling that they may not be actively involved in smuggling because if they were involved they would have ad .....

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21103/2015 - Dated:- 3-6-2015 - Archana Wadhwa , Member (J) And B. S. V. Murthy, Member (T), JJ. For the Appellant : Mr G Shivadass, Adv For the Respondent : Mr A K Nigam, AR ORDER Per: B S V Murthy: The appellants are engaged in freight forwarding, warehousing, Customs Broker activities, etc. Before the impugned order was passed, the appellant was operating under Customs Broker Licence which was valid up to 08.4.2014. The appellant has 17 branches in major airports, dry ports and seaports. The .....

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According to the report, Kolkata branch office of the applicant had provided services to an exporter, M/s Sun Granite Exports Ltd. (SGE Ltd.) in respect of Shipping Bill filed on 19.2.2009 and the container in which granite slabs were to be exported by SGE Ltd. was found to contain Red Sanders, a prohibited item for export; Proceedings were initiated against the appellant for imposition of penalty under Customs Act, 1962 by the Commissioner of Customs by issue of show-cause notice on 20/2/2010; .....

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his order before this Tribunal and this Tribunal vide Final Order No. 20928/2014 dated 23.5.2014, allowed the appeal and directed the Commissioner to renew the licence. In that order, it was mentioned that the appellants are entitled to get the licence renewed with immediate effect and the department was given liberty to start proceedings as and when the matter reached a certain stage in Court of law and in respect of show-cause notice issued under the Customs Act. Even though the order was set .....

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ompliance and granted stay against the order of the Tribunal. 4. However, the licence was renewed only for six months and therefore, the licence issued to the appellant was valid only up to 24.2.2015. In the meanwhile, another show-cause notice was issued by the Commissioner on 1.9.2014 requiring the appellant to show-cause as to why the licence should not be revoked or appropriate penalties should not be imposed on the appellant for the offence relating to smuggling of Red Sanders in the guise .....

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ow-cause notice leading to the impugned order is more or less a verbatim reproduction of the earlier show-cause notice dated 8.4.2014 except for a reference to offence report from Kolkata Customs dated 28.5.2014 which is more or less a reproduction of the earlier report sent by the Commissioner of Customs, Kolkata to the Commissioner of Customs, Bangalore at the time of renewal of the licence. 6. The Broker filed a Writ Petition before the Hon'ble High Court against the show-cause notice. Ho .....

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ords and from the submissions. 8. Shri Hitendra Kumar Mohanty was the Managing Director during the relevant period of Sun Granite Export Ltd. Shri Saif Ahmed is proprietor of M/s. Zaara Logistics and M/s. Roshini Enterprise. Shri Mustaq Quim is a business associate of Shri Saif Ahmed. Shri Javed is Munshi (Clerk) of Shri Saif Ahmed. Shri Pulak Dey is the Assistant Manager of the appellant and Shri Shatrudhan Das, Shri Akhil Rajowar and Shri Dipak Das are drivers/ cleaner. 9. It is the case of th .....

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unt in advance. It was shown that amount was paid by one M/s. Kaseera Resources Pvt. Ltd. whereas the fake transaction had been undertaken with Trusha Trading Pvt. Ltd. (represented by Shri Amit). There was no direct business correspondence between Trusha Trading Pvt. Ltd. and Kaseera Resources Pvt. Ltd. by SGE Ltd., the exporter and all communications are between Avinash on his personal e-mail id and the exporter. 11. The charge sheet also mentioned that a lorry WB 39 4846 operating on fake pap .....

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after SGE Ltd. prepared invoice and other documents and availing the facility of self declaration and self sealing facilities prepared ARE-1 Form on 17.02.2009 and while preparing the ARE-1 Form did not reflect the bottle seal No. even though it was required to be declared as per Circular No. 1/2006-Cus. dated 02.01.2006. Md. Sakil hired a godown in his name and according to the CBI Red sanders were loaded from this godown and the bottle seal was affixed. 13. It has been stated in the charge she .....

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ereafter the appellants presented shipping bill on 19.02.2009. According to the statement of Shri Dipak Das, one of the drivers, Shri Pulak Dey, Assistant Manager had liaisoned with Shri Shatrudhan Das and handed over the dock permit to Shri Shatrudhan Das. 14. On the basis of the investigations and the facts mentioned above, CBI filed a charge sheet for prosecution of all the persons concerned which includes the appellant firm and Shri Pulak Dey. 15. We are concerned only with the role of appel .....

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ubmission that the present show-cause notice and proceedings would be in contempt of Hon'ble High Court of Karnataka. Further he has also come to the conclusion that the three charges against the appellant which have been found to have been proved by the enquiry officer have been proved in his opinion also. This relates to allegations of contravention of Regulation 11(d), 17(9) of Customs Brokers Licensing Regulations (CBLR) and that of gross misconduct. The issues are as under: "(i) As .....

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he same lorry No. in the name of a non-existent transporter M/s. Pankaj Transport, but failed to take any action when the dock permits for the same lorry No. indicated the name of another transporter. (iii) The CB took the second bottle seal even though the transporter had already obtained a bottle seal for the same container." 17. It was submitted that the proceedings are hit by the principles of res judicata since the present impugned order has been passed on the basis of the offence repo .....

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tween the same parties under the same title. For better appreciation, the relevant portion of the provision of Section 11 of the CPC is reproduced below: "Section 11. Res judicata : No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequen .....

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- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation IV - Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit. Explanation V - Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be d .....

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ences, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree. Explanation VIII - An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised .....

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forfeit the security and impose penalty on the customs broker under Regulation 18 of CBLR 2013 by following the procedure under Regulation 20. Whereas in the case of renewal, the procedure prescribed under Regulation 9 is required to be followed and the renewal and revocation are separate areas. In the case of renewal, the Commissioner has to take into account the performance of customs broker with regard to regulations and complaints of misconduct whereas in the case of Regulation 18, the misc .....

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tuation wherein during the course of operation of the licence after the renewal of the licence as per the interim order of the Hon'ble High Court, no action for any misconduct can be taken against the customs broker. He has observed that if the submission of the appellant is accepted, it would result in a situation where the order of the Hon'ble High Court would provide an unrestricted licence to the CB to act as per their whims and fancies. Finally he has also observed that since the ap .....

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esult in a situation where in the broker can act according to his whims and fancies is correct. The broker has been able to raise the issue only because the ground for non renewal and revocation are one and the same. However, if we consider a situation where in the commissioner had renewed the licence, we could not have said that renewed licence cannot be revoked. Therefore we find some force in the observations of the Commissioner relating to res judicata . Regulation 9 which relates to renewal .....

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he revocation of licence, forfeiture of security and imposition of penalty can be made on various grounds which include violation of conditions of bond, failure to comply with regulations, committing any misconduct and other grounds mentioned therein. Unfortunately nowhere it has been stated what exactly amounts to misconduct. This would require a much more detailed consideration. In any case as observed by the learned Commissioner, the renewal of licence has different conditions and a penal pro .....

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rounds for revocation. Moreover in the case of non renewal, there is no provision for forfeiture of security and imposition of penalty. Therefore the Commissioner cannot be prevented from verifying whether the grounds taken for non-renewal are grave enough to warrant revocation, in which case, besides revocation of licence, the security deposited also can be forfeited which is not the case in the case of non-renewal. Therefore it would be difficult for us at this stage to quash the proceedings o .....

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aventions of provisions of Regulation 11 (d) and 17 (9) of Customs Broker Licensing Regulations (CBLR) and those of gross miss-conduct have been found proved by Inquiry Officer. He also observed that this was done on the basis of three grounds. The conclusions reached by the Commissioner based on his observations are sustainable is the question. 21. Before we proceed, it would be appropriate to reproduce Regulations 11(d) and 17(9) of CBLR relevant to these proceedings. Regulation 11 (d) provide .....

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oyees during their employment". 22. Circular No. 736/52/2003-CX dated 11.8.2003 explained the facility of self sealing and self certification of all categories of manufacturers, exporters, etc. The additional requirement specified is that the exporter shall however endorse the certificate on ARE-1 / ARE-2 as per the following format - "Certified that the description and value of the goods covered in this invoice/ARE-1/ARE-2 have been checked and the goods have been packed and sealed wi .....

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pelled to procure such bottle seals only from the department as this would defeat the very purpose of self sealing facility and avoid delay." (CBEC recognizes the fact that there can be delay if this is made a mandatory requirement). 24. Sum and substance of the above Circular is that in the case of self sealed container, exporter has to give declaration (if stuffing of the container is not done under the supervision of Central Excise or Customs officer) regarding verification of descriptio .....

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ble but the bottle seal number has not been indicated. However, before us no defence was presented on this ground. Regulation 11(d) of CBLR requires a Customs Broker to advise his client to comply with the provisions of law and in case of non-compliance same to be brought to the notice of the Deputy Commissioner/Assistant Commissioner. In this case, there is no defence submission that Customs Broker had indeed informed the exporter that the bottle seal number should be mentioned in ARE-1 and ask .....

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aj Transport. The defence of the CHA is that they had obtained the same as per the instructions of their client. The Commissioner also observed that three Dock permits were issued because of changes in arrival time of the cargo in the docks. He observed that no explanation has been given as to how dock permits got issued in the name of M/s East India Carriers whereas these were actually applied for in the name of M/s Pankaj Transport as per the instructions of their clients. The defence of the a .....

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e of M/s Pankaj Transport. He has also explained the procedure followed by the Customs Port. According to the appellants once the lorry number is entered, port computer system generates dock permit containing name of the transporter, engine number and chassis number since lorries other than those registered with the dock authorities are not allowed to enter the docks. The Commissioner has gone on to observe that this practice is followed to ensure that unknown parties cannot visit to dock area a .....

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s on the basis of which the dock permit was obtained by the appellant. It has been noted that when the vehicle entered in the dock, the officers at the gate before allowing the vehicle in question has to ensure that dock permit has been issued and vehicle is authorized to enter the dock and the details given are correct. When the truck entered the docks, it is to be noted that chassis number and engine number are also specified in the permit. Obviously, these numbers are mentioned so that the of .....

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done. 30. From the discussion above, it is clear that this is an additional service rendered to the exporter and has nothing to do with the provisions of Customs Act. There is no indication in the order of the Commissioner that dock permit is a document, a copy of which is handed over to the Customs officers and verified by the Customs officers and required to be submitted to the Customs as per Customs Act or any other rules, regulations or instructions etc. It is to be noted that if the officer .....

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ould not have entered the docks. In any case, Customs is concerned mainly with the container and the contents of the container. Even though it can be said that the Customs Broker could have checked up as to why the name of the carrier is given differently with the exporter, question is, is it necessary as per the Regulations or as per the provisions of law and the answer to this question would be no'. 31. The Commissioner has also observed that the Customs Broker is a big firm and has separa .....

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manager that container would be taken up for examination and therefore they obtained the second bottle seal. There is no evidence to show that the appellants were aware that the transporter had already obtained the bottle seal. The Commissioner has observed that normally it is not the duty of the customs broker to obtain a bottle seal which is to be obtained either by the exporter or the transporter from the shipping line. He has also observed that the claim of the appellants that they had take .....

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lusion that the act of obtaining the second bottle seal coupled with non mention of bottle seal no. in the ARE-1, substantiate the view that these acts were not bona fide. 33. We have already considered the 2 circulars issued by the Board relating to the sealing of containers. The circulars make it clear that only bottle seal should be affixed and the bottle seal can be obtained by the exporter from any source. There is no control exercised by the customs over the manufacturers of bottle seal, n .....

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Customs office and affixed. These extra precautions are taken only because in the case of containers sealed by Central Excise or Customs officer, only seal is examined to see whether it is intact or tampered or not. According to the Board's instruction there is no restriction on obtaining of bottle seal or source of bottle seal. Just because a person obtains an extra bottle seal, can it be said that it was obtained with a malafide intention is the question. There is absolutely no evidence t .....

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e was a malafide intention in obtaining a second bottle seal in case the container is taken up for examination does not emerge from the facts of the case. No circular has been cited either in the order or in the enquiry report to show that shipping line cannot issue two bottle seals in respect of the same container. A reading of the circular would show that Board is also concerned and wants to ensure that there should not be any delay in exports and hence has specifically provided that seal can .....

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kaj Transport was a non existent entity; the transporter had obtained a bottle seal; the truck had a bogus no. plate etc. The conclusions have arisen only from circumstantial evidence and those are the ones which we have discussed above. In view of the instructions issued by the Board that bottle seal can be sourced from any place excepting when the containers are sealed under supervision which may result in non examination of the container, in other cases there is absolutely no restriction in o .....

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t. In the absence of such a statutory requirement or by issue of a circular and in view of the possibilities of the officer requiring seal to be obtained by the broker, broker cannot be found fault with for obtaining the second seal as a precautionary measure. At this juncture we have to take note of the fact that the Commissioner himself observed in his order that appellants have experts in all areas and there is an officer called Docks Sircar. In the absence of any statutory provisions or spec .....

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r examination by the system. This can be done by the officer in the docks who is the person who looks at the documents and once he sees that there is no declaration of seal no., the container is bound to be taken up for examination. Therefore even if the customs broker was aware that the seal no. has not been declared in the ARE-1, he can safely assume that container will be taken up for examination and therefore he had obtained a second bottle seal in case of requirement. Therefore we do not fi .....

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broker to facilitate the smuggling of prohibited red sanders. 36. We have already come to the conclusion that the broker should have advised the exporter as regards declaration. Now the question is whether by the omissions and commissions of CB red sanders smuggling was facilitated. If the broker was aware and wanted to facilitate the smuggling, he would have advised the exporter to make proper declaration in the ARE-1, since with the expertise, CB could easily anticipate that container will be .....

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ellant, it cannot be said that this action was one of the series of acts of the appellant to facilitate smuggling of red sanders. In fact the opposite would have been done if the intention was to facilitate smuggling of red sanders as observed by us earlier. The same applies for obtaining dock permit also. The effort of a smuggler is to ensure that the truck comes in smoothly and does not get caught and does not get stopped. The moment the name of the actual transporter and the name of the trans .....

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ey would have changed the transporter or the truck or found some other way. There is no evidence of collusion at the port gate. The fact that they simply obtained the dock permits, in our opinion, cannot mean that it shows malafide intention. It can also be said that there is some substance in the submission that it was an additional service rendered by the appellant to the exporter, since their services asked for related to clearance of cargo and related activities and transportation work was n .....

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e container would not have been allowed to leave the country. In such a situation the second bottle seal would not be required at all. Therefore the fact of obtaining the second seal also gives benefit of doubt to the appellant about their knowledge or their active involvement in red sanders smuggling rather than opposite. 38. The above discussion would show that the omissions or commissions on the part of the appellant even when taken together cannot take us to a conclusion that the appellant f .....

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s shows that appellant had not trained their employees properly in scrutiny of the documents and the consequences. It has to be taken note that these requirements are contained in the instructions relating to procedure. Therefore the issue requires a more detailed knowledge of the law as well as the circulars. In view of the conclusion we have reached that appellant-firm had deliberately facilitated smuggling is not correct, obviously the omission in not advising the client has occurred because .....

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ensured this by proper training or by supervision. No evidence has been produced that this has been done. 40. In paragraph 14.7 the Commissioner has come to the conclusion that by failing to fulfill the obligations under Regulation 11(d) and 17(9) of CBLR 2013, the appellant has committed gross misconduct. Regulation 18 provides that punishment can be imposed on the broker for committing any misconduct which in the opinion of the Commissioner renders him unfit to transact any business in the cus .....

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4 containers had been exported earlier and therefore it cannot be said that appellants did not know the exporter and there is no allegation that KYC norms in respect of exporter have not been fulfilled. Further as submitted by the appellant this is the only case against the appellant for a number of years during which they were operating. We have to accept the fact that many of the conclusions of the learned Commissioner are based on the practice in the port or procedure followed by customs in .....

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any business. 41. Several case laws were cited before us by both sides and Commissioner has also discussed several case laws. In our opinion this is a unique case. Normally the conclusions have to be based on facts and this is one of those cases where the facts are totally unique and are not comparable with any other case and therefore it would be unfair to either side if we come to any conclusion based on precedent decisions in the absence of any comparable facts whatsoever. 42. Another observa .....

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the container in any case in the absence of declaration relating to bottle seal and the red sanders loaded in the container would have been detected. Therefore the infraction which was ignored by the customs broker, though would be a violation of regulations, did not result in facilitation of smuggling of red sanders. We cannot say that there were repeated infractions. 43. Another submission that was made before us was the proportionality of the punishment to the offence involved. The appellants .....

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which would be normally contained in the Act, Rules or the notifications issued under the Act or Rules. In the Circular dated 11.08.2003, no specific provision of law has been quoted under which the circular has been issued. Similar is the case in Circular No. 01/2006. We have also observed that the omission on the part of the customs broker cannot be said to be facilitating smuggling of red sanders. Therefore it cannot be said that the infraction of the broker in this case is very serious in n .....

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een able to function as a customs broker for more than 6 months which is another aspect to be taken into account while determining the quantum of punishment. 44. Another aspect which was submitted is the fact that the omission took place 5 years back and action could not have been taken with so much delay. Here the Commissioner has relied upon the decision of the Hon'ble High Court of Gujarat in the case of OTA Kandla Pvt. Ltd. Vs. Union of India [2011 (269) E.L.T. 457 (Guj.)], we consider t .....

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ioner should have renewed the licence till the appeal is finally decided as per the Hon'ble High Court's decision and any action taken to revoke the licence would be against the directions of the High Court, he has observed that both are separate proceedings with which we have also agreed. Nevertheless when the issue is considered, which we do below, would show that Commissioner should have considered these submissions in greater detail and should have considered the consequences of his .....

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ce to be renewed, yet directed the Commissioner to renew the licence subject to the result of the appeal and no time limit for operation of renewed licence was specified. Nevertheless the Commissioner proceeded to renew the licence only for a period of 6 months. This was done on 25.08.2014. Thereafter on 01.09.2014 show-cause notice was issued to the appellant to revoke the licence and the licence was revoked on 20.02.2015 by the impugned order. In the meanwhile, the appeal filed by the Revenue .....

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te of the admission by the Revenue that renewal of the licence only for a period of 6 months was a mistake when the Hon'ble High Court had directed renewal of licence till the appeal was decided. The counsel for the appellant (Revenue) argued that in view of the order of the Commissioner dated 20.02.2015, which has already been challenged before the Tribunal, the appeal filed by the Revenue becomes in fructuous since there is no licence to be renewed. This was done after admitting that renew .....

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specify for renewal for a lesser period than specified in the Regulation. The only condition provided there under was that the same would be subject to the result of the appeal. By having renewed the license for a shorter period than provided under the Regulations, the respondent has disobeyed the directions issued by this Court as renewal would be as per the Regulations and not as per the whims of the appellant or as it may be understood by him. The appellant may thus file a response as to why .....

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Court can become in fructuous. 48. If the appeal filed by the Revenue against the order of this Tribunal dated 23.05.2014 is allowed by the Hon'ble High Court, upholding non-renewal of the licence, the entire proceedings taken for revocation become in fructuous. This is because, the appeal has already been filed by the appellants before the Tribunal and if the Tribunal takes a view that revocation was wrong, there is no licence to operate because non-renewal would have been upheld by the Ho .....

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