2020 (1) TMI 1338

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....m house agent, M/s Fast Forward, for having enabled the utilization of the license issued to them by another person for handling of a fraudulent export consignment and, on conclusion of the statutory prescriptions, the impugned order held penalty of forfeiture as proportionate to the gravity of the offence. The licensee is in appeal against that detriment. The Committee of Chief Commissioners directed the licensing authority to appeal against its own order for enhancement of the penalty to permanent revocation of the license. 3. It may not be out of place to take note here that the licensee has since been operating for close to a decade and, if the customs authorities were convinced that exemplary punishment was warranted, application for 'out of turn' hearing should have been moved by the appellant-Commissioner before us. 4. The 'custom house agent' is in appeal before us on the submission that the charge against them had been framed for not obtaining letter of authority from the exporter which, according to them, does not constitute breach of obligation as 'custom house agent' as there is no mandate in the Regulations for obtaining such letter of authority for every instanc....

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....s in the case. The doctrine of proportionality thus steps in focus true nature of exercise the elaboration of a rule of permissible priorities." In the context of revocation of a CHA license, this ordering or priorities, or the proportionality doctrine, was considered recently by the Andhra Pradesh High Court in Commissioner of Customs and Central Excise v. H.B. Cargo Services, 2011 (268) E.L.T. 448 (A.P.) in the following terms : "12...............................For minor infraction, or infractions which are not of a serious nature, an order of suspension may suffice. On the contrary, when revocation is directed it has to be only in cases where the infraction is of a serious nature warranting exemplary action on the part of the authorities for, otherwise, two types of actions would not have been provided for. Primarily it is for the Commissioner to decide as to which of the actions would be appropriate but, while choosing any one of the two modes, the Commissioner has to consider all relevant aspects, and draw a balance sheet of the gravity of the infraction and the mitigating circumstances. The difference in approach for consideration of cases warranting revoca....

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...., that there be a code of conduct which, when violated, brings retribution in the form of a penalty, that the entity who is sought to be proceeded against is served with charges, and supporting evidence thereof, which is subject to an enquiry as a pre-requisite for imposition of penalties. There is no scope for insinuating any higher authority to exercise superintendence over the appointing authority. 11. In terms of Customs House Agents Licensing Regulations, 1984 (which we are concerned with in the present instance), the power to license is vested in the Commissioner of Customs. That authority is, therefore, the 'master' to whom the agent owes its existence. It is the Commissioner of Customs who is responsible for the operation and functioning of the Customs House and any detriment to efficient functioning of the Customs House will ultimately reflect on that authority. There is no other authority more concerned with weeding out of unacceptable elements and, therefore, there is no cause for any other authority to sit in judgment on the decision of a Commissioner that continued operation of licensee is detrimental to the functioning of the Customs House. 12. It ca....

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.... having held, in MD Sadrani v. Commissioner of Customs (General), Mumbai [2017 (358) ELT 602 (Tri-Mumbai)], that '11. In exercise of this power, the Central Board of Excise & Customs has notified the respective Regulations. The Regulations provide for the manner of licensing, the obligations that devolve on the licensee, the consequences of disregard of these obligations and the remedies available to a licensee visited with detriment. These flow from the vesting of powers in the parent provision which, inter alia, designates the Regulations as the source of the appellate remedies available. Regulation 22 has, unambiguously, made available such remedies only to the agent/broker and none other. Therefore, unlike the appellate remedies prescribed in the Customs Act, 1962, in relation to collection of revenue and other attendant functions, that are available to the assessee as well as to Revenue, it is only the detriment that impacts an agent/broker that can be agitated before the designated appellate authority. No provision exists in the Regulations for an appeal by the other side. The challenge before us is, therefore, outside the ambit of the Regulations. 12. The q....

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.... refused to interfere with the order of the Magistrate, the High Court's jurisdiction was invoked to avoid the order of the Magistrate and not that of the Sessions Judge. The bar of Section 397(3) was, therefore, effectively attracted and the bar could not be circumvented by the subterfuge of treating the revision application as directed against the Sessions Judge's order.' For us to permit recourse to the general provision in Section 129D of Customs Act, 1962 merely because of the absence of such a remedy in the Regulations and for convenience of some executive authority would be tantamount to proclaiming that our perspicacity is superior to that of the sovereign legislative organ - an overreach that we will not even deign to consider. 13. We have already premised a creator-creature relationship between the licensing authority and the licensee. It is an established principle that detrimental consequence to the creature can be set in motion only by the author of its being. The license is issued by the Commissioner of Customs. It is the sole prerogative of the licensor to terminate the license and erase the license out of existence. That prerogative cannot be usurp....