Akshey Gupta v. The Commissioner of Customs (General)

S. RAVINDRA BHAT, J NAJMI WAZIRI, J JANUARY 03, 2017/acm

* IN THE HIGH COURT OF DELHI AT NEW DELHI Judgment delivered on: 03.01.2017 + AKSHEY GUPTA ..... Appellant Through: Mr. Rajshekhar Rao, Mr. Ishaan Madaan, Mr. Subhiksh Vasudev and Mr.Chaitanya Puri, Advs. Versus THE COMMISSIONER OF CUSTOMS (GENERAL) ..... Respondent Through: Mr. Amit Bansal, Mr. Akhil Kulshrestha and Ms. Seema Dolo, Advs. CORAM: HON'BLE MR. JUSTICE S. RAVINDRA BHAT HON'BLE MR. JUSTICE NAJMI WAZIRI S. RAVINDRA BHAT (ORAL) 1. Admit. 2. Following question of law arises for consideration: "Did the CESTAT fall into error in upholding the revocation of the appellant's CHA license in the circumstances of the case?" 3. The appellant is aggrieved by an order of the Customs Excise and Services Tax Appellate Tribunal (CESTAT) whereby an order dated 14.10.2015 revoking its Customs House Agents Licence, issued under the Customs House Agents Licensing Regulations, 2004 (hereinafter referred to as 'the CHALR, 2004 Regulations' for short ) was upheld. The Show Cause Notice issued against the appellant alleged that in 2011 it had committed some misconduct by way of lapses on its part in regard to consignments by one M/s Durga International. The appellant in reply to the show cause notice, had contended that it was investigated and questioned in 2012 after which nothing was heard and that in the circumstances alleging that it was responsible for the mis-declaration of goods (instead of a consignment of chaat masala, a prohibited item of 30 kg of Ketamine was alleged to have been exported) was made belatedly. The specific allegation against the appellant was that as CHA it failed to make diligent inquiry with respect to the consignment as it was expected to under Regulation 13(e) and 13 (o) of the CHALR, 2004 Regulations. The appellant had denied the allegations and contended that the exporter was a functioning business entity. Initially, the respondent issued suspension order and later conducted an inquiry. The inquiry was completed after considerable delay – in fact it transgressed the time limit prescribed by the Regulations and the guidelines framed thereunder. The Inquiry Report held the petitioner guilty. Based upon the findings in the Inquiry Report, the competent officer passed the order in original whereby the appellant's CHA licence was revoked and its security forfeited. The CESTAT upheld this order. 4. Mr. Raj Shekhar Rao, the learned counsel for the appellant contended that the findings of the order in original of the CESTAT cannot be sustained, it is submitted that the Inquiry Officer completely ignored the relevant materials such as the investigation report unequivocally indicated that export house in fact was in existence. The learned counsel relied upon the letter written by the Narcotics Control Bureau of the Central Government to the Canadian High Commission on 21.12.2011 to say that the whereabouts of the proprietor of the consignor i.e. M/s Durga International was known and that in fact the inquiry was made from him. It is stated that the failure to take into account these crucial facts has resulted in a patently erroneous finding which was accepted by the order in original without any comment. Learned counsel also relied upon Agricultural Processed Food Products registration certificate issued to the Exporter i.e. M/s Durga Enterprises on 19.06.2009 in support of the submission that having regard to these materials which were part of the record, the findings were unwarranted. 5. Likewise, it is stated that relevant documents pertaining to the other two exporters i.e. M/s Damini International and M/s Shiv Jyoti Sales Corporation, were also placed on record. Although the Inquiry Officer accepted the explanation with respect to M/s Shiv Jyoti Sales Corporation, it failed to take into account the explanation and documents pertaining to M/s Damini International in addition to M/s. Durga International. The learned counsel relied upon the judgment of this Court in Impexnet Logistic v. Commissioner of Customs (Gene