TMI Blog2018 (11) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... te of revocation till the date of the impugned order of the Tribunal was sufficient and no further revocation of licence was warranted - the impugned order has not taken a view which is in any manner perverse and / or arbitrary - decided in favor of assessee. Whether CESTAT, which is a creature of the Statute, is vested with the jurisdiction to grant relief by taking a lenient view, the power for which does not come out of the parent enactment? - Held that:- This question has already been answered by the Supreme Court in K.M. Ganatra [2016 (2) TMI 478 - SUPREME COURT], where the Supreme Court has held that the Tribunal has power under the Customs House Agents Licensing Regulations to modify the order of the Commissioner by taking a lenient view and restricting the period of revocation - Revenue does not dispute this position and hence this question stands answered in the affirmative in favour of the Assessee. Whether the findings of the CESTAT that there are no violations of Regulation 14(a) and 14(l) of the CHALR 1984 by the CHA are based on no evidence or partly relevant or partly irrelevant evidence and are otherwise perverse and arbitrary? - Held that:- In so far as the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CHA Licence after holding that there is a violation of Regulation 14(d) of the CHALR, 1984 by the CHA? (b) Whether CESTAT, which is a creature of the Statute, is vested with the jurisdiction to grant relief by taking a lenient view, the power for which does not come out of the parent enactment? (c) Whether the findings of the CESTAT that there are no violations of Regulation 14(a) and 14(l) of the CHALR 1984 by the CHA are based on no evidence or partly relevant or partly irrelevant evidence and are otherwise perverse and arbitrary? (d) Whether CESTAT can ignore that a penalty of ₹ 5,00,000/- under Section 112(b) of the Customs Act, 1962 was imposed on the CHA by Commissioner of Customs (Preventive), which was reduced to ₹ 2,00,000/- by the CESTAT itself vide its order No. A/963-66/99-NB(DB) dated 29.10.1999 , which was upheld by Hon'ble Apex Court, thereby confirming the involvement of the CHA in the case? 2. Before answering the substantial questions of law, a brief background of facts is necessary. The Respondent is a Customs House Agent governed by the Customs House Agency Licensing Regulations (the relevant regulations being the Regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inquiry report, the CHA Licence No. 11/819 held by the Respondent was placed under suspension vide office order no.28/98 dated 4th December, 1998 passed by the Assistant Commissioner (LA). The Respondent being aggrieved by the suspension of its CHA Licence by order dated 10th December, 1998 preferred an appeal before the Tribunal. By an order dated 23rd August, 1999, the Tribunal directed restoration of the CHA Licence vide order dated 23rd August, 1999. The Revenue filed reference application in the Tribunal and the Revenue was accordingly directed to restore the licence immediately by order dated 10th November, 1999. Accordingly, the CHA Licence was restored vide order dated 21st December, 1999 passed by the Commissioner of Customs (G), Mumbai. 5. Thereafter, an inquiry under the regulation 23 of the 1984 regulations was initiated against the Respondent for violation of Regulations 14(a), 14(d), 14(l), 14(o) and 14(j) of the 1984 Regulations. During the inquiry proceedings, the inquiring officer held that three Charges of violation of Regulations 14(a), 14(d) and 14(l) of the 1984 Regulations levelled against the Respondent were proved. The Adjudicating Authority accordingly a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs or Deputy Commissioner of Customs. (d) advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Assistant Commissioner of Customs or Deputy Commissioner of Customs. (l) ensure that all documents prepared or presented by him or on his behalf are strictly in accordance with orders relating thereto; 21. Suspension or revocation of licence. (1) The Commissioner may, subject to the provisions of Regulation 23, suspend or revoke the licence of a Custom House Agent so far as the jurisdiction of the Commissioner is concerned and also order for forfeiture of security on any of the following grounds:- (a) failure of the Custom House Agent to comply with any of the conditions of the bond executed by him under Regulation 11; (b) failure of the Custom House Agent to comply with any of the provisions of these regulations, whether within the jurisdiction of the said Commissioner or anywhere else; (c) any misconduct on his part whether within the jurisdiction of the said Commissioner or anywhere else which in the opinion of the Commissioner renders him unfit to tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercising its discretion and setting aside the cancellation of the CHA Licence had exercised its discretion in an inappropriate manner. 9. Dr. Sujay Kantawala, the learned counsel for the Respondent has submitted that the Tribunal has only upheld the violation of Regulation 14(d) of the 1984 Regulations, whilst dropping the other charges. The Tribunal accordingly found that this violation of Regulation 14(d) did not warrant cancellation of the CHA Licence as ordered by the Commissioner and that accordingly a lenient view has been taken considering that the Respondent had been paralysed from conducting its business for over eight months, on account of the CHA Licence having been suspended and which came to be restored nearly after one year. He has relied upon the inquiry report to show that two of the charges of violation of the 1984 Regulations levelled against the Respondent were also not proved. He has distinguished the judgment of the Supreme Court in K.M. Ganatra (Supra) by submitting that the Supreme Court had found in the factual matrix of that case there was a serious violation of the Regulations and on many occasions by the transferring of the licence in contraventi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4(d) of the 1984 Regulations to be a violation of a procedural requirement by not having produced the purchase order of the Indian Navy to whom the imported consignments were ultimately meant to be delivered. Such violation according to the Tribunal did not warrant cancellation of the licence as ordered by the Commissioner and that a lenient view had been taken by considering the suspension of the CHA Licence which had already been suffered by the Respondent prior to the passing of the impugned order to be sufficient. The judgment of the Supreme Court in K.M. Ganatra (Supra) was passed in the facts and circumstances of that case considering that the transfer of licence by the customs house agent was in contravention of the Regulations on many occasions and that immense financial loss has been suffered to the Revenue. The Supreme Court accordingly held that in the factual matrix of that case, it was a serious violation on the part of the customs house agent involving fraudulent activity affecting the Revenue and hence the discretion exercised by the Tribunal in restricting the period of revocation of the customs house agent licence was found to be inappropriate. The judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e material before it found the Respondent guilty of violation of Regulations 14(a) and 14 (l) apart from Regulation 14(d) of the 1984 Regulations. He has submitted that these findings and material on record have been overlooked by the Tribunal in holding that the Respondent had not violated Regulations 14(a) and 14(l) of the 1984 Regulations. He has submitted that the findings of the Tribunal that these charges have not been proved are based on no evidence or partly relevant or partly irrelevant evidence and are otherwise perverse and arbitrary. Dr. Sujay Kantawala on the other hand has submitted that the Tribunal only after considering the evidence on record including the findings in the inquiry report has taken a reasoned decision in setting aside the other charges of violation of the 1984 Regulations. He has taken us through the impugned order and submits that this being findings of fact which are not in any manner perverse, calls for no interference from this Court. 15. Having considered the submissions, we find that the Tribunal has in considering whether the Respondent had committed violation of Regulation 14(a) of the Regulation, 1984 noticed that there was a discrepancy ..... X X X X Extracts X X X X X X X X Extracts X X X X
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