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Judgment
Rule. Returnable forthwith. By consent of parties taken up for final hearing. By this petition under Article 226 of the Constitution, the petitioner has prayed for direction to respondent No. 2-Commissioner of Customs (General), CHA Section (P & E), Mumbai to restore the petitioner''s CHA licence in compliance with the order dated 9 October 2013 of CESTAT (issued on 23 October 2012) in appeal being Appeal No. C/417/2011 2013 (296) ELT 477
By order dated 29 November, 2010, the Commissioner of Customs (General) Mumbai revoked the petitioner''s licence as a Clearing Agent and also ordered forfeiture of the security amount. Proceedings were initiated against the petitioner on the grounds that the petitioner had committed breach of Regulations 13(d), 13(e) and 13(n) of the Customs House Agent Licensing Regulations, 2004, which read as under:-
Regulation: 13-Obligation of Customs House Agent.-
A-Customs House Agent shall:-
(a) to (c)............................
(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 Dy. Commissioner of Customs or Assistant Commissioner of Customs.
(e) exercise due diligence to ascertain the correctness of any information which imparts to a client with reference to any work related to clearance of cargo or baggage.
(f) to (m)...................
(n) ensure that he discharges his duties as Customs House Agent with utmost speed and efficiency and without avoidable delay.
The basic charge against the petitioner was that neither the raw material imported under Advance Licence (DEEC) were utilized for manufacturing any Stainless Steel Utensils nor finished products were exported as required under the Advance Licence Scheme. The charge was that the petitioner played a major role in diversion of goods in the local market right from the execution of High Sea Sales Contract (HSSC) executed before importing, thereafter upto the time of diversion of goods in the local market.
On the basis of the above, the Commissioner of Customs ordered an enquiry under Regulation 22 of the CHALR, 2004 appointing Deputy Commissioner of Customs as an Inquiry Officer. On 28 May 2010, the Dy. Commissioner of Customs by his report held in favour of the petitioner save and except holding that the petitioner had failed to verify the authenticity of the importer. However, by order dated 29 November 2010, the Commissioner of Customs (General) passed an order overturning the findings of the Inquiry report and ordered revocation of licence and forfeiture of the entire amount of security deposit.
Being aggrieved by order dated 29 November 2010, the petitioner preferred an appeal being Appeal No. C/417/2011 to CESTAT. By order dated 9 October 2012, CESTAT has allowed the petitioner''s appeal. The Tribunal has held that the HSS agreement at the time of clearance was examined by the officers of Customs who cleared the goods and there is no allegation that the said agreement is fabricated one entered into by the parties to the contract. The Tribunal further held that HSS agreement was executed prior to imports, therefore, proceedings under CHALR, 2004 cannot be initiated for this act of the petitioner. Besides on the issue of diversion of goods, the Tribunal has given findings that the petitioner was not in the knowledge of the diversion of goods by the importer. This is for the reason that the petitioner had handed over the imported goods to the representative of the importer.
Aggrieved by the above order, the Commissioner of Customs (General) has challenged the same in Customs Appeal No. 22 of 2013. We have today by a separate order admitted the said appeal, but we have declined to grant any interim stay of the order dated 9 October 2012 in the said appeal by setting out reasons for not granting the same. As a consequence the Commissioner of Customs (General) is bound to implement the order dated 9 October 2012 of CESTAT.
Petition is accordingly disposed of by directing the respondent No. 2-Commissioner of Customs (General) to implement the order dated 9 October 2012 of CESTAT.
At this stage learned counsel for respondents prays for stay of operation of this order as it seeks to have further recourse in accordance with law. In the facts and circumstances of the case, respondent No. 2 is directed to implement the order dated 9 October 2012 of the Tribunal within four weeks from today. Since the petitioner is out of business since December 2010 upon passing of the revocation order by the Commissioner of Customs on 29 November 2010, the petitioner has already suffered loss of business for last more than three years. Since the respondent has got sufficient time to implement the order, we see no justification to stay the operation of this order.