TaxTMI 
TaxTMI 
2011 (3) TMI 801
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....e present petition are that the petitioner is a company incorporated under the Companies Act, engaged in the business as CHA since 1949, having its offices at New Delhi, Calcutta, Paradip and Haldia. As per the case of the petitioner, in the month of December - 1997 or thereabout, one R.P. Bansal & Company of Agra (hereinafter referred to as 'the Importer') approached the petitioner through one Sunil Kothari of M/s. Prabhat Kiran Mariners, a proprietorship concern, of one Mr. Parag P. Mehta, and requested the petitioner to act as Custom House Agent for handling the clearance of one consignment of 105 MT of gypsum (hereinafter referred to as 'the said goods') at Kandla Port. Accordingly, the petitioner agreed to act as CHA for the Importer and precipitated the course of action for filing the requisite bill of entry on 8th December 1997, bearing the number 10377. It is further the case of the petitioner that after complying the necessary formalities for the clearance of the said goods, the petitioner informed the said M/s. Prabhat Kiran Mariners for taking requisite steps for taking the delivery of the said goods from the authorities of Kandla Port, inasmuch as the said M/s. Prabhat ....
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.... 28-6-1999. 5. It further transpires that in the meantime, another show cause notice dated 11th September, 1998 under the signature of the Commissioner of Customs, Kandla-respondent No. 2 herein, came to be served on the petitioner under Regulation 23 of the said Regulations calling upon the petitioner to submit its written statement of defence to the imputations of the misconduct and misbehaviour as contained in the Articles of Charges. The petitioner submitted its reply dated 26th October, 1998 explaining the reasons and praying for not taking any action on the ground that the charges were not sustainable. However, the Inquiry Officer, submitted his report dated 26th June 1999, on the conclusion of inquiry to the Commissioner of Customs, Kandla for taking further action. The respondent No. 2-Commissioner of Customs, Kandla, based upon the said report of Inquiry Officer, held the charges as proved against the petitioner and ordered for the revocation of licence of the petitioner as CHA under Regulation 21 of the said Regulations, vide order dated 9th June, 2000. Being dissatisfied with the said order, the petitioner preferred an appeal before the CEGAT, Mumbai for quashing....
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....manently revoked. The third Member being Member (Judicial) vide order dated 12th August 2002 concurred with the order proposed by Member (Judicial). Accordingly, the final order dated 18th September 2002 came to be passed by the CEGAT dismissing the appeal of the petitioner. Being aggrieved by the said judgments and orders passed by the CEGAT, the petitioner preferred the present petition under Articles 226 and 227 of the Constitution of India. 7. It was sought to be submitted by learned Advocate Mr. D.C. Dave for the petitioner that Regulation 13 of the said Regulations prohibited sale or transfer of the licence and the action of sub-letting the licence as alleged against the petitioner could not be said to be either sale or transfer of licence in favour of M/s. Prabhat Kiran Mariners. According to Mr. Dave, the expression "otherwise transfer" would attract its interpretation from the word 'sold' or 'transferred' and could not take within its sweep the alleged act of sub-letting. Mr. Dave also submitted that the statement of the Executive Director of the petitioner company was recorded under Section 108 of the said Act in another inquiry and could not be relied upon in the....
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....to the rival contentions raised by the learned counsels for the parties and to the orders passed by respondent Authorities, it clearly transpires that both the Authorities i.e. the Commissioner of Customs and the CEGAT, after thoroughly discussing the evidence as regards the charges of mis-conduct levelled against the petitioner, had come to the conclusion that all the said charges were duly proved. It is pertinent to note that though the two Members of CEGAT had differed on the issue of imposition of punishment i.e. revocation of licence, both had concurred with the findings on the establishment of charges against the petitioner inter alia that the petitioner had transferred its licence by sub-letting the same to M/s. Prabhat Kiran Mariners in violation of Regulation 13 of the said Regulations and that the petitioner did not maintain the statutory records and thereby contravened Regulation 19 of the said Regulations and that the petitioner obtained custom pass for the persons who were not its employees and permitted the employees of M/s. Prabhat Kiran Mariners to use the same before the Custom Authorities for its monitory gain, in violation of Regulation 14(b) and 20(6) of the sai....
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....tute its decision to that of the administrator. This is the Wednesbury test. (2) The Court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles. (3)(a) As per Bugdaycay, Brind and Smith, as long as the Convention is not incorporated into English Law, the English Courts merely exercise a secondary judgment to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he had done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our countr....
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....ate authority shocks the conscience of the High Court/Tribunal it would appropriately would the relief, either by directing the disciplinary authority/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare case, impose appropriate punishment with cogent reasons in support thereof" Similar view was taken in Indian Oil Corporation v. Ashok Kumar Arora [1997 (3) SCC 72], that the Court will not intervene unless the punishment is wholly disproportionate." 11. Again, while considering the "Doctrine of Proportionality", the Hon'ble Supreme Court, in the case of Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association & Anr. reported in (2007) 4 Supreme Court Cases 669, has held as under : "18. 'Proportionality' is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proport....