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2015 (10) TMI 2332 - MADRAS HIGH COURT

2015 (10) TMI 2332 - MADRAS HIGH COURT - 2015 (326) E.L.T. 122 (Mad.) - Suspension of Custodianship – Unauthorised removal of seized Red Sander logs - Whether suspension was in violation of principles of natural justice and Commissioner was justified in invoking the provisions of Regulation 11(2) of Handling of Cargo in Customs Area Regulations 2009, when no enquiry against appellant was pending? – Appellant contends that there has been violation of tenets of natural justice as appellant was nei .....

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committed in contravention to provisions of HCCAR, 2009 by appellant was not new and there was lack of supervision on part of appellant's CFS and no surprise checks were conducted during the night time to ensure that staffs on night duty would remain vigilant - Appellant admitted the role of his employees in illegal act of removal of seized container thus was responsible for every act by their employees - Where immediate action is not required, a prohibitory order can await compliance with requ .....

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- Repeated instances of smuggling of goods in appellant’s CFS confirms serious lapses on part of custodian and cannot be overlooked – Commissioner directed to complete the investigation proceedings and pass orders as contemplated under Regulations of HCCAR, 2009 within a period of three months – Decided in favour of Revenue. - C. M. A. No. 1623 of 2015 and M. P. No. 1 of 2015 - Dated:- 1-10-2015 - V. Ramasubramanian And T. Mathivanan, JJ. For the Appellant : Mr. Vijayanarayanan, Senior Counsel, .....

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he pivot of the order of the first respondent, dated 23. 12. 2014 and thereby, the custodianship vested on the appellant's CFS was suspended with immediate effect by virtue of the powers conferred upon him under Regulations 11(2) of HCCAR, 2009. 3. In this appeal, we would like to highlight the point that the potentiality of our Nation is being exploited for exportation to get unlawful self enrichment. 4. It is known fact that, of late, the global ball, while moving around, has been wobbling .....

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h the above facts may superficially appear to be irrelevant, still they are absolutely relevant, as they are intertwinedly connected with the factual scenario of the present case. 7. The appellant viz. , M/s. Chandra Container Freight Station(CFS) and Terminal Operators Private Ltd. , was appointed by the first respondent as the custodian for the import and export goods as per Section 45 of the Customs Act, 1962 vide Public Notice No. 77/2007 dated 02. 06. 2007 at Nallur Village, Minjur, Chennai .....

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dated 6. 3. 2014 and entrusted with the appellant for safe and secured custody. 10. That on 19. 12. 2004, the said container was removed unauthorisedly from the custody of the appellant by using forged documents. 11. Prima facie, it appeared that the alleged removal of seized goods was due to the gross negligence and utter failure on the part of the appellant for not ensuring safety and security of the seized goods which were kept under their custody. 12. Since the nature of offence was very ser .....

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t, the bonafide and credibility of conduct of custodian - appellant raised a serious doubt and the investigation by customs and police authorities was still pending and yet to be completed and if the appellants were allowed to continue as custodian, it would certainly cause jeopardy and hamper the process of investigation. 14. While dismissing the appeal, the Tribunal has directed the first respondent to complete the investigation proceedings and take appropriate action under HCCAR, 2009 as expe .....

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the Commissioner of Customs. 17. From the grounds of appeal as well as from the materials placed before us, the following substantial questions of law arise for our consideration:- (a) whether the order of suspension of custodianship dated 23. 12. 2014 was passed in violation of the principles of natural justice? (b)Whether the Commissioner of Customs was justified in invoking the provisions of Regulation 11(2) of Handling of Cargo in Customs Area Regulations 2009, when no enquiry against the a .....

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TEKAD Enterprise, International Container Freight Station, PasirGudang, Johar, Malaysia. 19. On receipt of this information, the officers of Docks Intelligence Unit (DIU) had verified the seals of the container No. HDMU 2601255 in the presence of the independent witnesses and found it intact. Then the container was opened and found to contain wooden logs suspected to be Red Sanders which were prohibited for export. Thereafter, the said container was closed with Customs one time seal and moved t .....

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along with the trailer bearing No. TCE 9972 under a mahazar , dated 14. 2. 2014. 22. Nextly, on an information provided by one Mr. B. Vijayabalan, KMK Shipping, a previous consignment pertaining to M/s. Jayam Plast which was already shipped to Malaysia covered under the Shipping Bill No. 9768912, dated 30. 1. 2014 vide container No. SEGU 1697558 through Shipping Lines M/s. PIL India Pvt. Ltd. , was recalled. 23. On examination of the container No. SEGU 1697558, it was found to contain 304 Red S .....

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or safe custody as they were the custodians appointed by the first respondent. 26. Since the investigation was at the final stage, the period for issuance of Show Cause Notice had also been extended under Section 110(2) of the Customs Act, 1962. 27. Under the above circumstances, on 19. 12. 2014, A. C. (Docks) had informed that one of the seized container No. SEGU 1697558 seized by DIU under the mahazar, dated 6. 3. 2014 containing red sanders, was removed unauthorisedly from the appellant's .....

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f the appellant CFS, through a letter, dated 20. 12. 2014. 30. Apart from this information, he had also lodged a police complaint with E3 Minjur Police Station, on the same date. 31. Based on his complaint, a case in Cr. No. 558/14 under Sections 420 and 380 I. P. C. was registered on the file of E3 Minjur Police Station on 22. 12. 2014. 32. At about 3. 15 p. m. on the same day, the Inspector of Police attached to E3 Minjur Police Station had seized the container trailer lorry bearing Registrati .....

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dated 2. 6. 2007 until further orders. 34. It is pertinent to note here that on 29. 12. 2014 a Corrigendum to the order of suspension of Custodianship, dated 23. 12. 2014 was issued by the first respondent, wherein, it is stated that, the existing Import and Export Goods available in the CFS will be allowed to be cleared/exported after completion of necessary Customs formalities. 35. In the interregnum, on a petition filed by the Assistant General Manager of the Appellant under Sections 451 and .....

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notice to various persons, i. e. , as nearly as 11 persons including the appellant CFS alleging that the appellant CFS had contravened various provisions of HCCAR, 2009 as well as certain provisions of Customs Act, 1962. 37. Despite repeated requests made by the appellant vide their letters, dated 24. 12. 2014 and 1. 1. 2015, the first respondent did not come forward to revoke the order of suspension of the custodianship of the appellant CFS. 38. It is also revealed from the records that during .....

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ately, the appellant had addressed a letter to the first respondent, viz. , the Commissioner of Customs, dated 16. 2. 2015, requesting to revoke the order of suspension of custodianship granted to them and to permit them to operate as custodian pending enquiry, if any. 41. Since the first respondent had not revoked the order of suspension of the custodianship granted on the appellant, they had filed an appeal before the second respondent Tribunal, which was dismissed on 29. 6. 2015. Challenging .....

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m to the said order was issued by the first respondent, wherein, it is stated that:- the existing Import and Export Goods available in the CFS will be allowed to be cleared/exported after completion of necessary Customs formalities. 44. According to Mr. Vijayanarayanan, learned Senior Counsel appearing for the appellant, the impugned order, dated 23. 12. 2014, is an unilateral one as no enquiry was contemplated as against the appellant CFS. 45. Mr. Vijayanarayanan, has projected his arguments on .....

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principles of natural justice. 46. In support of his contention, he has placed reliance upon the following decisions:- a. Freightwings and Travels Ltd. vs. Commissioner of Customs, Mumbai (2001 (129) ELT 226 (Tri-LB). b. Automative Tyre Manufacturers Association vs. Designated Authority (2011 (263) ELT 481 (S. C. ). c. Pinkcity Logistics Ltd. vs. Commissioner of Customs (2015 (320) ELT 241 (Raj. ). d. International Cargo Services vs. Union of India (2006 (193) ELT 546 (Del. ). e. Commissioner o .....

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ng. In the present case, admittedly, the Commissioner has not given even such a hearing after passing the impugned order suspending the appellant's CHA licence under Regulation 21(2). Therefore, we are inclined to hold that the impugned order of the Commissioner does not pass the test of the rule of natural justice laid down by the apex Court and, further, that the order was issued in colourable exercise of power. We, therefore, direct the Commissioner of Customs to give personal hearing to .....

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erim measures may be taken, to avoid the mischief of passportee becoming an escapee before the hearing begins. 'Bolt the stables after the horse has been stolen' is not a command of natural justice. But soon after the provisional seizure, a reasonable hearing must follow, to minimise procedural prejudice. 49. In Automative Tyre Manufacturers Association, cited second supra, while speaking on behalf of the Division Bench of the Apex Court, Hon'ble Mr. Justice D. K. Jain, in paragraph .....

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tion of property, personal rights and material deprivations for the party affected. The principle holds good irrespective of whether the power conferred on a statutory body or Tribunal is administrative or quasi-judicial. It is equally trite that the concept of natural justice can neither be put in a strait-jacket nor is it a general rule of universal application. Undoubtedly, there can be exceptions to the said doctrine. As stated above, the question whether the principle has to be applied or n .....

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Division Bench of Rajasthan High Court (Jaipur Bench), in paragraph No. 51, has observed that. . . . . . the powers under Regulation 21 are required to be seen essentially as those of a preventive measure, and hence, it cannot be said that in no case such powers could be exercised without previous notice to the person concerned. True it is that generally and ordinarily, the principles of natural justice warrant pre-decisional one would be permissible. 51. In International Cargo Services, cited f .....

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oner of Customs (Gen), Mumbai, cited fifth supra, a Division Bench of Bombay High Court, has held that, it is not mandatory that in all cases of suspension, Regulation 22(1) ought to be followed. Whereas in cases where immediate action is necessary the Commissioner of Customs is fully empowered to suspend the licence where an enquiry against such an agent is pending or contemplated as per Regulation 20(2). 53. Secondly, Mr. Vijayanarayanan, learned Senior Counsel has argued that the customs have .....

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issued without even referring to the order of suspension of custodianship of the appellant, dated 23. 12. 2014 after the completion of detailed investigation and after recording the statement of all concerned and that the conclusion of the Tribunal was absolutely wrong to say that the investigation was yet to be completed. 55. Thirdly, he would submit that it was true that the Regulation 11(2) empowers the Commissioner in appropriate cases, where immediate action was necessary to suspend the app .....

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of Regulation 12 of HCCAR, 2009, nor any enquiry was initiated and that the Commissioner, had therefore, wrongly stated in the suspension order, dated 23. 12. 2014 that an enquiry was pending or contemplated. Since the Regulation 11(2) was wrongly invoked by the Commissioner, who is the first respondent herein, Mr. Vijayanarayanan, has urged that the impugned order of suspension of custodianship of the appellant's CFS might be set aside. 57. Further, he would submit that no person's rig .....

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that the removal of the seized container was done with the knowledge of the appellant's CFS and therefore, the impugned order, dated 23. 12. 2014 suspending the custodianship of the appellant was absolutely erroneous and against the principles of natural justice and hence, he has urged to allow the appeal after setting aside the order of the Tribunal. 60. In this connection, Mr. Vijayanarayanan, has drawn the attention of this Court to the file noting, dated 19. l2. 2014, which reads as und .....

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Superintendent, who was on duty at the CFS. 62. The learned Senior Counsel has also drawn our attention to the letter, dated 22. 12. 2014 addressed to the Commissioner, by the appellant. 63. This letter reveals that in pursuant to the registration of the case in Cr. No. 558 of 2014, dated 22. 12. 2014, the investigating officer had seized the container and brought it back to the appellant's CFS and due information was also given to the Assistant Commissioner of Customs (Docks). 64. It is als .....

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stated that the said act was neither wilful nor wanton and that it was happened under the unforeseen circumstances, which were beyond their control. 66. In this regard, Mr. Vijayanarayanan, has argued that the alleged removal of seized container from the appellant's CFS was not aware of by them and that for the acts committed by their employees, the appellant could not be held responsible. 67. In this connection, he has placed reliance upon the decision in Seetharam Molial Kalal vs. Santanup .....

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y the master. . . . 69. He has also adverted to that the first respondent/Commissioner had not proved that the removal of the seized container was done with the knowledge of the appellant's CFS and therefore, the impugned order, dated 23. 12. 2014 suspending the custodianship of the appellant was absolutely erroneous and against the principles of natural justice and hence, he has urged to allow the appeal after setting aside the order of the Tribunal. 70. Countering his arguments, Mr. K. Moh .....

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offence case was registered against one M/s. Point to Point, the appellant and one Shri M. B. Sathyam, the AGM of the appellant for an alleged attempt to export Muriate of Potash (MoP), a restricted item, for which, they, including the appellant, were penanlised vide O-in-On No. 15880/2011, dated 5. 5. 2011 for their role in permitting entry and storing of the goods inside the CFS without any export documents like shipping Bill and invoice. 73. Mr. K. Mohanamurali, has also argued that the appe .....

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for the alleged illegal export of red sanders logs about 14. 750 MTs. The investigation in this case revealed that the containers, which were stuffed under customs supervision and sealed with Customs Seal at the appellant's premises, had been given way for substitution of the declared cargo with red sanders, an item prohibited for export, enroute to the Chennai Harbour. 75. He has also pointed out that since the appellant had not complied with the regulation 6(k) of HCCAR, 2009, a notice, d .....

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lso stuffed at the appellant's premises and that the investigation had further revealed that the same modus operandi was adopted in the past for exporting red sanders logs through the container SEGU 1697558, which had already left the country and was called back to India. 78. Upon examination, the container, which is in question in the present case, was found to contain red sanders logs and it was also stuffed at the appellant's premises and the declared cargo was substituted with red sa .....

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at the container when it had entered the appellant's premises was neither opened nor checked properly or weighed by the officials of the appellant's CFS. 80. Mr. Mohanamurali, learned Standing Counsel for the first respondent has also argued that there was lack of supervision on the part of the appellant's CFS and no surprise checks were conducted during the night time to ensure that the staffs were on night duty would remain vigilant. 81. He has also indicated that the appellant had .....

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g prior permission from the Commissioner of Customs. 83. In support of his contentions, he has placed reliance upon the following decisions:- a. Commissioner of Customs (Gen), Mumbai vs. Raj Clearing Agency (2006 (199) ELT 602 (Bom. ). b. Pinkcity Logistics Ltd. vs. Commissioner of Customs (2015 (320) ELT 241 (Raj. ). c. S. R. Sale & Co. vs. Union of India (2013 (296) ELT 289 (Bom. ). d. Ujwal International Ltd. vs. Commissioner of Customs, Kochi (2015 (319) ELT 490 (Ker. ). 84. In Raj Clear .....

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een followed in the sense prior notice before suspension ought to be given cannot be sustained. A bare reading of Regulation 20(2) very clearly indicates that where immediate action is necessary the Commissioner of Customs has been granted such a power to suspend such licence where an enquiry against such agent is pending or even contemplated. Accordingly we answer the aforesaid question of law to the effect that it is not mandatory that in all cases of suspension, Regulation 22(1) ought to be f .....

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cussed at length about the Customs House Agents Licensing Regulations, 2004 as well as about the requirements of the principles of natural justice. Since this decision has already been discussed in detail in the foregoing paragraphs, it would be redundant to discuss the same here again. 86. In S. R. Sale's case, cited third supra, a Division Bench of the Bombay High Court has observed that, even when a statute or statutory regulation is silent in regard to compliance with natural justice, su .....

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st essentially where immediate action is warranted. It is open to the Commissioner under Regulation 21 to pass an immediate prohibitory order for a limited period and to afford to CHA, in the meantime, an opportunity of being heard. 87. It has been further observed that, where immediate action is warranted to prevent a customs house agent from carrying out activities which are prejudicial, a prohibitory order can be passed under Regulation 21 for a limited period. During that period an opportuni .....

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ion is to be an exception. 88. In Ujwal International Ltd. , cited fourth supra, the learned Single Judge of Kerala High Court has held that, No specific opportunity of hearing is intended in prohibition proceedings as per Regulation 23 of Customs Brokers Licensing Regulations, 2013. However, the Regulations being silent, the necessity to give opportunity of hearing has to be interpreted widely and has to be read into it. Moreover, such order, which is an interim measure, cannot be permitted to .....

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2009 91. Regulation 2(b) is extracted as under:- (b) Customs Cargo Services provider means any person responsible for receipt, storage, delivery, dispatch or otherwise handling of imported goods and export goods and includes a custodian as referred to in Section 45 of the Act and persons as referred to in sub-section (2) of section 141 of the said Act. 92. Regulation 6 contemplates the, Responsibilities of Customs Cargo Service Provider :- 93. Clauses (a), (f), (i), (k), and (q) of sub-regulatio .....

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s or Appraiser; (i) be responsible for the safety and security of imported and export goods under its custody; (k) be responsible for the secure transit of the goods from the said customs care to any other customs area at the same or any other customs station in accordance with the permission granted by the Deputy Commissioner or Assistant Commissioner of Customs; (q) abide by all the provisions of the Act and the rules, regulations, notifications and orders issued thereunder. 94. Sub-Regulation .....

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and is concerned, we are in consensus to endorse the finding of the CESTAT that the appellant being the custodian of the seized container, viz. , SEGU 1697558 containing red sanders had violated the Regulations enshrined in 6(1)(a), 6(1)(f), 6(1)(i), 6(1)(k) and 6(1)(q) of HCCAR, 2009. 96. Regulation 11 of HCCAR, 2009 contemplates, Suspension or revocation of approval for appointment of a Customs Cargo Service provider . 97. Sub-Regulation (1) and (2) of Regulation 11 reads as under:- a. Sub-Reg .....

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te cases where immediate action is necessary, the Commissioner of Customs may suspend the approval granted to a Customs Cargo Service provider where an enquiry against such Customs Cargo Service provider is pending or contemplated. 98. Regulation 12 deals with the, Procedure for suspension or revocation of approval and imposition of penalty . 99. Sub-Regulation 8 of Regulation 12 enacts that, If any Customs Cargo Service provider contravenes any of the provisions of these regulations, or abets s .....

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has also argued that on 5. 2. 2015, a showcause notice under Section 124 of the Customs Act, 1962 was issued by the customs authority for the alleged violation of the provisions of HCCAR, 2009 without any reference to the order of suspension or any proposal either to continue with the suspension or to cancel the custodianship of the appellant. 103. He has also indicated that the said showcause notice, dated 5. 2. 2015 was issued after detailed investigation and after recording the statement of a .....

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as submitted by the learned Standing Counsel appearing for the first respondent. 104. Further, he would submit that as per the settled principle of law, a pre-decisional hearing ought to have been given to the appellant to explain his position and atleast minimal fairness should have been given to the appellant. But in this case, neither pre-decisional hearing nor post decisional hearing was given to the appellant by the customs authorities and therefore, he has urged that the Commissioner had v .....

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The phrase natural justice is also not capable of a precise definition. The underlying principle of natural justice, evoked under the common law, is to check arbitrary exercise of power by the State or its functionaries. Therefore, the principle implies a duty to act fairly i. e. fair play in action. In A. K. Kraipak (supra), it was observed that the aim of rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. 107. Again, we find it better to ma .....

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to the provisions of a statute, particularly when the order has adverse civil consequences which obviously cover infraction of property personal rights and material deprivations for the party affected. 109. On coming to the given case on hand, the impugned order, dated 23. 12. 2014 was issued by the Commissioner of Customs by virtue of the powers conferred on him under Regulation 11(2) of HCCAR, 2009. 110. The operative portion of the impugned order reads that, I order for immediate suspension o .....

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clear that where immediate action is necessary, the Commissioner of Customs can suspend the approval granted to a Customs Cargo Service provider. 113. In the given case on hand, the earlier showcause notice, dated 12. 9. 2014 reveals the previous antecedents of the appellant. On three occasions, the appellant had violated the Regulations of HCCAR, 2009 and in one case, the appellant was also penalized with penalty. 114. As per the Regulation 6(k) of HCCAR, 2009, the custodian is responsible for .....

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rials available on record, we find that there was laxity in the supervision on the part of the appellant and no surprise checks were conducted during night hours to ensure that the staffs were on night duty would remain vigilant. 117. In the counter filed by the first respondent before the Tribunal, it is stated that apart from the violation of Regulation 6(k), the appellant had also violated Regulation 6(2) of HCCAR, 2009 by outsourcing the security functions without obtaining permission from t .....

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ed container was given to the appellant on condition that the appellant shall deposit a sum of ₹ 2. 00 crores. 119. As argued by Mr. Mohanamurali, these are all the circumstances, which warranted the Commissioner of Customs to order for the immediate suspension of custodianship vested on the appellant. 120. Further, we find that the Commissioner of Customs did not bring the operation of the appellant in a standstill in view of the order passed in corrigendum, dated 29. 12. 2014 and that th .....

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of the Commissioner of Customs was fully justified in invoking the provisions of Regulation 11(2) of HCCAR, 2009. 123. It cannot be heard to say that the appellant was not aware of the illegal removal of the seized container from their CFS. Equally, it is not able to be countenanced that the appellant could not be held responsible for the acts committed by their employees. 124. It is trite law that the employer is vicariously liable for the acts of its employee acting in the course of his emplo .....

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ion as it appear, in the present case, we understand that the intent of the legislature is to take emergent action and in that event and subject to fulfilment of the ingredients of the provisions enunciated under Regulation 11(2) of HCCAR, 2009, an order could very well be passed by the Commissioner of Customs without affording pre decisional hearing and subsequently, immediate post decisional hearing may amount to substantial compliance with the basic rule of law (Ref: International Cargo Servi .....

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