TMI Blog2001 (8) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... two separate show cause notices were issued on 8-11-1995 and 23-8-1999 respectively. Reliance was placed on Regulation 12(2) which envisages that renewal of the licence can be considered only in the absence of any complaint of misconduct including non compliance of any obligation specified under Regulation No. 14. It is of significance to note that though at some stage authorities noted the proceedings to be in relation to renewal of licence, later on the matter was dealt with as if it was one for revocation. The distinction is significant because after 13-1-2000 there was no question of revocation. So far as the first show cause notice is concerned, it was alleged that an employee of the petitioner, Kanshi Ram Rana, appeared in an examination under Regulation 20 held on 8-9-1995 on the strength of a photo copy of his Identity Card No. 22/91 after changing the validity period on the photo copy from 1/95 to 1/96 whereas the said identity card, which was valid only upto 1/95, had already been surrendered to the Department. Kanshi Ram Rana admitted that he had in fact changed the validity period of the identity card from 1/95 to 1/96 so that he could appear in the examination and al ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tative of M/s. Pinks Cargo Agency by the Commissioner of Customs ICD since the same reflected the complicity and the extent of abatement and connivance. Personal hearing was given to the petitioner and after hearing the parties, the Commissioner came to hold that in respect of the first show cause notice there was violation of Regulation 20. Even if Rana took examination without the petitioner's consent it shows that there was lack of supervision and proper control on the part of the petitioner over its employees and it cannot absolve itself of the responsibility on this count on account of ignorance. So far as second charge is concerned it was concluded that the petitioner was responsible for correctness of information as was required under Regulation 14(e) which it failed to do. There was clear violation of Regulation 13 which prohibits the transfer of licence to any other unauthorized person to transact business of customs clearance whether the latter is a sub-agent or broker or otherwise. In view of the observations the following order came to be passed : The CHA M/s. Falcon Air Cargo Travels Pvt. Ltd. had not only sublet their licence to their sub-agent in clear violatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nor the Tribunal noted that Inquiry Officer had exonerated the petitioner of the charges contained in the first show cause notice. So far as charges contained in the second show cause notice are concerned, the factual and legal position have not been properly analysed by the authorities. No authority has come to any definite finding that the petitioner not only permitted wrong figures to be quoted but also did so deliberately or with any motive. It is also submitted that the exporter has been subjected to only penalty by the Customs Authority. Similar was the situation so far as Pinks Cargo Agency is concerned. Petitioner is virtually made to suffer civil death on account of non-continuance of the licence. It has functioned for a quarter of a century without any blemish. Factual position would go to show that Pinks Cargo Agency did paper work. At the most it can be said that though the petitioner had acted in good faith, it signed documents without proper verification, for which stringent action like revocation of licence should not have been directed. The punishment is highly disproportionate to the alleged violation. In response, Counsel for respondent submitted that this is a c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring before the Tribunal is entitled to know either as expressly stated by the Tribunal; or inferentially stated, what it is, to which the Tribunal is addressing its mind. 7.It is settled law that reasons are harbinger between the mind of the maker to the controversy in question and the decision or the conclusion arrived at. Natural justice demands that decision should be based on some evidence of probative value. The object underlying rules of natural justice is to prevent miscarriage of justice and secure fair play in action. A duty to give reasons entails a duty to rationalize the decision. Reasons, therefore, help to structure the exercise of discretion and a necessity of explaining why a decision is reached requires one to address one's mind to the relevant factors which ought to be taken into account. Secondly, furnishing reasons satisfies an important desire on the part of the affected persons to know why a decision was reached. Basic fairness requires that those in authority over others should tell them why they are subject to some liability or have been refused some benefit. Giving of reasons enables Courts and Tribunals to effectively and meaningfully exercise their res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not transferable. Obligations of Customs House Agent under Regulation 14, are prescribed as follows : 14. Obligations of Custom house Agent. - A Custom House Agent shall : (a) obtain an authorisation from each of the companies, firms or individuals by whom he is for the time being employed as Custom House Agent and produce such authorisation whenever required by an Assistant Commissioner of Customs; (b) Transact business in the Customs Station either personally or through an employee duly approved by the Assistant Commissioner of Customs, designated by the Commissioner; (c) Not represent a client before an officer of Customs in any matter to which he, as officer of the Department of Customs gave personal consideration, or as to the facts of which he gained knowledge, while in Government service; (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; (e) Exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Regulation 21 deals with suspension or revocation of licence. Procedure for suspension or revocation of licence under Regulation 23 as prescribed is as follows : 21. Suspension or revocation of licence. - 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 transact any business in the Customs Station. 2. Notwithstanding anything contained in sub-regulation (1), the Commissioner may, in appropriate cases where immediate action is necessary suspend the licence of a Custom House Agent where an enqui ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, suspension/revocation, as the case may be, has to be directed looking to the gravity of the situation in the background of facts. For minor infraction or infraction which are not of very serious nature order of suspension may suffice. On the contrary, when revocation is directed it has to be only in cases where infraction is of a very serious nature warranting exemplary action on the part of the authorities, otherwise two types of actions would not have been provided for. Primarily it is for the Commissioner/Tribunal to decide as to which of the actions would be appropriate but while choosing any of the two modes, the Commissioner/Tribunal has to consider all relevant aspects and has to draw a balance sheet of gravity of infraction and mitigating circumstances. The difference in approach for consideration of cases warranting revocation or suspension or non-renewal has to be borne in mind while dealing with individual cases. In a given case the authorities may be of the view that non-renewal of licence for a period of time would be sufficient. That would be in a somewhat similar position to that of suspension of licence though it may not be so in all cases. On the other hand, the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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