COMMISSIONER OF CUSTOMS (GENERAL) Vs. NEPTUNE CLEARING AGENCY

JUDGEMENT

(1.) This appeal of the Revenue challenges the order passed by the Customs, Excise and Service Tax Appellate Tribunal, West Zonal Bench dated 7 -5 -2012 [ : 2012 (286) E.L.T. 729 (Tri. -Mum.)] allowing the appeal of the respondent. The respondent is a Customs House Agent and his licence was revoked by the Commissioner of Customs (General) by his order -in -original dated 15 -10 -2009. The revocation was pursuant to an inquiry alleging violation of Regulations 12, 18(1) and 13(n) of the Customs House Agents Licensing Regulations, 2004. The article of charges were supplied on 19 -1 -2007 to which a reply was filed on 27 -8 -2007. There was a hearing scheduled before the Inquiry Officer on 18th/19th March, 2008. But the representative/Advocate of the Agent was busy in some cases in Ahmedabad and he could not attend the proceedings. Therefore, an adjournment was requested. The matter was, then, adjourned to 26th/27th March, 2008. But the allegation is that no notice of this hearing was given to the agent. Thus, the inquiry concluded in gross violation of principles of natural justice.

(2.) The Tribunal found that these facts are uncontroverted and from the records it is revealed that on 19 -3 -2008 there was a hearing held and in the absence of the agent. Statements of some persons were recorded. They were asked to appear again. Further the agent was notified and informed that a personal hearing would be held later but on that date the persons whose statements were recorded could not attend and, therefore, they were not made available for cross examination. The Tribunal concluded that whether the notices of further hearing were given to those persons or not, has not been substantiated from the record.

(3.) After having heard Mr. Jetly, learned Counsel appearing for the Revenue and Mr. Shetty, learned Counsel appearing for the respondent at some length, we find a clear inconsistency in the order of the Tribunal. The fundamental error that the Tribunal has committed is that it did not note the difference between the charge -sheeted agent being not given an intimation or notice of the adjourned date of hearing and if that is the case, one can understand the conclusion that the inquiry was vitiated and, therefore, the order of revocation of the licence should be set aside. However, it is another thing to conclude that there was a notice of hearing but the agent or its representative could not remain present and the request for postponement was not accepted. The inquiry officer then proceeded to record statements of certain persons in support of the charges against the agent with the specific understanding given to the agent or his representative that those persons whose statements have been recorded would be made available at the further inquiry or copies of this statements would be handed over so that the charge -sheeted agent could adopt appropriate course in law. In the second eventuality the Law does not permit the inquiry itself to be set at naught and the revocation set aside following which the licence should be restored. In all such matters the breach of principles of natural justice or violation thereof by itself and without anything more, is not fatal. The Law is very clear inasmuch as the Court must conclude as to which principle of natural justice has been violated, whether this principle is so fundamental and basic going to the root of the case and its violation must vitiate the entire proceedings. The inquiry being held without any notice of hearing and concluded in the absence of charge -sheeted agent or employee, could be a case where inquiry proceedings can be held to be vitiated. However, during the course of inquiry and at various stages if there is breach of principles of natural justice alleged and held to be proved, it is open to the Court not to vitiate or nullify the whole inquiry but calling upon the aggrieved person to produce proof and establish prejudice caused to him. If that is proved, then, depending upon other circumstances the inquiry must be allowed to proceed with by correcting and rectifying the breach. The Inquiry can then proceed from the stage at which the breach caused is removed further.