Case Note & Summary
The petitioner, M/s. Delta Logistics, a Customs House Agent, challenged an order dated 7 July 2011 passed by the Commissioner of Customs revoking its licence under Regulation 22(7) of the Customs House Agents Licensing Regulations, 2004. The licence had been suspended earlier, and a chargesheet with four articles of charges was issued on 29 October 2009. The Enquiry Officer, by a report dated 23 December 2010, exonerated the petitioner of all charges. The petitioner made representations on 6 January 2011 and 18 February 2011. However, the Commissioner, by the impugned order, differed from the Enquiry Officer's report and ordered revocation. The petitioner contended that the Commissioner had no power to differ, relying on a Division Bench judgment of the Bombay High Court in Commissioner of Customs vs. Rajan Virji & Co., which held that Regulation 22 does not confer any power on the Commissioner to disagree with the Enquiry Officer's report. The court, after hearing both sides, accepted the petitioner's contention and quashed the Commissioner's order, holding that the Commissioner lacked the authority to differ from the exonerating report. The court did not express any opinion on the merits of the case and left it open to the respondents to take appropriate proceedings in accordance with law.
Headnote
A) Customs Law - Customs House Agents Licensing Regulations, 2004 - Regulation 22 - Power of Commissioner to differ from Enquiry Officer's report - The Commissioner of Customs, as the disciplinary authority, does not have the power under Regulation 22 to disagree with the report of the Enquiry Officer and impose a penalty of revocation of licence, where the Enquiry Officer has exonerated the licensee. The Division Bench in Commissioner of Customs vs. Rajan Virji & Co. held that the regulation does not provide for any such disagreement. (Paras 1-3)
Issue of Consideration
Whether the Commissioner of Customs, acting as the disciplinary authority, has the power under Regulation 22 of the Customs House Agents Licensing Regulations, 2004 to differ from the report of the Enquiry Officer and revoke the licence of a Customs House Agent.
Final Decision
The court allowed the writ petition, quashed and set aside the order dated 7 July 2011 passed by the Commissioner of Customs. The court left it open to the respondents to take appropriate proceedings in accordance with law, without expressing any opinion on the merits of the case.
Law Points
- Natural justice
- Disciplinary proceedings
- Power of disciplinary authority to differ from enquiry officer
- Construction of regulation 22 of Customs House Agents Licensing Regulations
- 2004
Case Details
2011 LawText (BOM) (09) 41
Writ Petition No.7122 of 2011
Dr. D.Y. Chandrachud, A. A. Sayed
Mr. S.N. Kantawala with Mr. Brijesh Pathak for the Petitioner, Mr. Pradeep S. Jetly for the Respondents
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Nature of Litigation
Writ petition under Article 226 of the Constitution challenging revocation of Customs House Agents Licence.
Remedy Sought
Petitioner sought quashing of the order dated 7 July 2011 revoking its licence.
Filing Reason
The Commissioner of Customs revoked the petitioner's licence despite the Enquiry Officer exonerating the petitioner of all charges.
Previous Decisions
The Enquiry Officer exonerated the petitioner on 23 December 2010. The Commissioner differed and revoked the licence on 7 July 2011.
Issues
Whether the Commissioner of Customs has the power under Regulation 22 of the Customs House Agents Licensing Regulations, 2004 to differ from the report of the Enquiry Officer and revoke the licence.
Submissions/Arguments
Petitioner argued that the Commissioner could not differ from the Enquiry Officer's report in view of the Division Bench judgment in Commissioner of Customs vs. Rajan Virji & Co., which held that Regulation 22 does not provide for disagreement by the Commissioner.
Respondents opposed the petition, but the court did not detail their arguments.
Ratio Decidendi
Under Regulation 22 of the Customs House Agents Licensing Regulations, 2004, the Commissioner of Customs, as the disciplinary authority, does not have the power to differ from the report of the Enquiry Officer. Where the Enquiry Officer exonerates the licensee, the Commissioner cannot impose a penalty of revocation of licence by disagreeing with the report.
Judgment Excerpts
In that case, the Division Bench, while construing the provisions of Regulation 22 held that where an enquiry report of the Assistant Commissioner is not to the satisfaction of the Commissioner, Regulation 22 does not make any provision for disagreement by the Commissioner.
On the above premise, we have no hesitation to record that in the entire regulation there is no power or authority to differ.
Procedural History
The petitioner's licence was suspended. On 29 October 2009, a chargesheet was issued. The Enquiry Officer exonerated the petitioner on 23 December 2010. The petitioner made representations on 6 January 2011 and 18 February 2011. The Commissioner passed the impugned order on 7 July 2011 revoking the licence. The petitioner filed the present writ petition on an unspecified date.
Acts & Sections
- Constitution of India: Article 226
- Customs House Agents Licensing Regulations, 2004: Regulation 22, Regulation 22(7)
