AMIT K. DEDHIA Vs. COMMISSIONER OF CUSTOMS, JAMNAGAR

JUDGEMENT

(1.) THE appellant is Custom House Agent having licence by the Tuticorin Custom House and has been working in Pipavav Port. On the ground that two employees of the appellant who are H Card holders and working for the Custom House Agent indulged in illegal export of Red Sanders, an order was issued by the Commissioner of Customs, Jamnagar on 20 -6 -2011 exercising the powers under Regulation 21 of Customs House Agent Licensing Regulations, 2004. By the said order, Commissioner of Customs prohibited the appellants from transacting the business in Pipavav Custom Station with immediate effect. The appellant approached Honble Gujarat High Court by filing a Special Civil Application and the Honble High Court directed the Commissioner to give an opportunity to the appellants to present their case and to consider the representation and pass a fresh order. In accordance with the directions of Honble Gujarat High Court, the impugned order dated 22 -10 -2011 has been passed. In this order also, the Commissioner of Customs, Jamnagar has taken the same view and has prohibited the appellant from performing the functions of the Custom House Agent in Pipavav Port till the final decision is taken in the matter by the parent license issuing authority namely, Commissioner of Customs, Tuticorin. The appellant has an early hearing of the stay application against this decision. Since the stay petition has also been listed today the early hearing application becomes infructuous and accordingly, is rejected.

(2.) SUPPORTING the stay petition, learned counsel submitted that the prohibition order has cost the civil consequences to the appellant and it is an excess to the jurisdiction of the Commissioner of Customs; that the Commissioner can prevent the Custom House Agent from performing his function in one or more sections of the Custom stations; that in this case, the Custom House Agent has been barred for performing any functions in the Customs station Pipavav and therefore, it beyond the powers granted under Regulation 21 to the Commissioner; that CHALR has been provided for the limited purpose of barring a Custom House Agent for working in a particular branch, if he has not fulfilled obligations with directions to work in that Section or sections; further it was also submitted that even in the remand application filed by the DRI in respect of the two employees, who had indulged in importation of Red Sanders, it has been recorded that the employees indulged in these activities by using the password of M/s. Prime Forwarders, since the appellant would not allow them to undertake such activities; in such a situation, obviously the Custom House Agent was not at all at fault and employees had indulged in such activities not during the course of their employment and therefore, such responsibility on the Custom House Agent also cannot be fixed in this case and therefore, the Commissioner had acted in excess of his jurisdiction in prohibiting Custom House Agent from performing his function in or whole of the custom station; it was also submitted that the observations of the Commissioner that the regular licensing authority would take the decisions also is not coming out of the records since, even though more than six months are over, no action has been initiated by the Tuticorin Custom House in respect of the Custom House Agent for action under any of the regulation; it was also submitted that there is no order by any of judicial forra, since no such incidences have come before judicial forra earlier. Therefore, the appellant had submitted the decisions relating to suspension of the license which happened to be similar also, the prohibition would lead to the situation wherein Custom House Agent cannot perform function at all in the Custom House. However, the learned Commissioner had taken a view that those decisions relating to suspension cannot be applied since these are in exercise of power under Regulation 21 of CHALR.

(3.) LEARNED DR would submit that the decision taken by the Commissioner is an administrative decision and not an appealable order. He relied upon the decision of the Tribunal in the case of M/s. Rajendra Purohit in Appeal No. C/245 of 2011 dated 11 -8 -2011, wherein while considering the prohibition order issued by the Commissioner of Customs, Kandla, prohibiting the appellant from working as Custom House Agent at Kandla MP and SEZ, Mundra, the Tribunal came to the conclusion that prohibition order issued by the learned Commissioner is nothing but an administrative order, since no provision was brought to their notice that the appeal lies against the prohibition, the appeal was dismissed as not maintainable. Since the above decision of the Divisional Bench has been passed in respect of the very same assessee and judicial discipline require me to follow the decision, I am not able to consider the submissions made by the learned counsel for the appellants. At this juncture, the learned counsel sought to distinguish the present case from the decision in the case wherein the Division Bench had rendered the decision by submitting that the impugned order was passed in terms of the directions of the Honble Gujarat High Court and was a speaking order after giving reasonable opportunity to the appellant and therefore, the Tribunal gets jurisdiction and appeal becomes maintainable. I am unable to see and appreciate how a decision which was an administrative decision earlier becomes an appealable order just because of another order is passed in terms of the directions of the Honble High Court requiring the Commissioner to consider the representation giving opportunity to the appellant to present their case and to pass an order. Under these circumstances, I am unable to consider the stay application, since the appeal itself in not maintainable. Since I do not find any point in keeping the appeal pending on the record, which is not maintainable, I consider it appropriate that appeal itself be rejected at this stage itself. Accordingly, application for early hearing, stay petition and appeal are rejected.