ORDER
J.H. Joglekar, Member (T)
1. When this application for stay of the order dated 21-9-1991 was argued, it appeared that the point of law being extremely short, the appeal itself could be taken up for disposal. This was done after hearing of Shri J.C. Patel for the appellants and Shri K.L. Ramtake, JDR for the Revenue.
2. The Commissioner of Customs, Mumbai issued a notice to the appellants proposing to hold an enquiry against them under Regulation 23 of the CHA Licensing Regulations, 1984. The article of charge was served on the CHA. The Asstt. Commissioner was nominated as the enquiry officer. The notice directed the CHA to file a written reply and also to appear before the enquiry officer when so directed. The noticee filed due reply on 23-4-1998. The enquiry was held by the nominated Asstt. Commissioner. The departmental witnesses were examined and cross examined. Thereafter, the presenting officer duly appointed by the Commissioner of Customs filed written briefs. A copy thereof was given to the present appellants on 22-7-1998 by the Inquiring Authority. The reply thereto was filed on 25-8-1998. All these documents are in the appeal memorandum. Thereafter, the enquiry officer filed the report of his findings and furnished it to the officer of Customs. Thereafter, the impugned order dated 21-9-1999 was issued by the said Commissioner. The body of the order is reproduced below:
” Whereas an enquiry proceedings initiated against M/s. Narendra Forwarders Pvt. Ltd. CHA No. 11/544 have been concluded by Shri V.R. Anthrolikar, Asstt. Commissioner of Customs (Inquiry Officer) who submitted his Inquiry Report dated 13-10-1998).
AND WHEREAS it is seen that the said Inquiry Report is unacceptable for the reasons discussed in the file and hence it is necessary to conduct re-enquiry under Regulation 23 of the Customs House Agents Licensing Regulations, 1984 against M/s. Narendra Forwarders Pvt. Ltd. CHA No.11/544.
I, the undersigned, therefore, in exercise of the powers conferred under Regulation 23 of the Custom House Agents Licensing Regulations, 1984, appoint Shri D. N. Choudhary, Dy. Commissioner of Customs to enquire into the grounds of the case against M/s. Narendra Forwarders Pvt. Ltd. CHA No. 11/544 and submit his report of enquiry to the undersigned. A copy of Customs House Agents Licensing Regulations, 1984 is also enclosed herewith.”
3. Vide their letter dated 5-10-1999, the CHA represented to the Commissioner that re-enquiry could not be ordered in terms of Regulation 23 and requested the Commissioner to withdraw the order. The succeeding Commissioner on 15-12-1999 ruled that the order dated 21-9-1999 sustained and that the Commissioner had power to pass such orders in terms of Clause 7 of Regulation 23 of the said Regulation. This appeal, has therefore been, filed by the appellants.
4. For appreciation of the dispute it is necessary to reproduce the said Regulation 23.
“23. Procedure for suspending or revoking licence under Regulation 21.
(1) The Commissioner shall issue a notice in writing to the Customs House Agent stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said agent to submit within such time as may be specified in the notice not being less than forty-five days, to the Assistant Commissioner of Customs nominated by him, a written statement of defence and also to specify in the said statement whether the Customs House Agent desires to be heard in person by the said Assistant Commissioner of Customs.
(2) On receipt of the written statement from the Customs House Agent, or where no such statement has been received within the time-limit specified in the notice referred to in Sub-regulation (1), the Assistant Commissioner of Customs may inquire into such of the grounds as are not admitted.
(3) The Assistant Commissioner of Customs shall in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings and he may also put any question to any person tendering evidence, for or against the Customs House Agent, for the purpose of ascertaining the correct position.
(4) The Customs House Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings and where the Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record this reasons in writing for so doing.
(5) At the conclusion of the aforesaid inquiry, the Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings.
(6) The Commissioner of Customs shall furnish to the Custom House Agent a copy of the report of the Assistant Commissioner of Customs and shall require the Customs House Agent to submit within the specified period not being less than sixty days any representation that he may wish to make against the findings of the Assistant Commissioner of Customs.
(7) The Commissioner shall after considering the report of the inquiry, and the reprersentation thereon, if any, made by the Customs House Agent, pass such orders as he deems fit.
(8) Any Customs House Agent aggrieved by any decision or order passed under regulation 21 or Sub-regulation (7) of regulation 23, may appeal under Section 129A of the Customs Act, 1962, to the Customs and Central Excise Gold (Control) Appellate Tribunal established under Section 129(1) of Customs Act, 1962.”
5. Regulation 21 empowers the Commissioner to suspend or revoke the licence of a Customs House Agent following the procedure given in regulation 23. Although, Clause (8) of Regulation 23 specifically refers to Sub-regulation (7) thereof, the wording of the said regulation is wide enough to make the impugned order as an order against which the appeal would lie before the Tribunal.
6. In the manner in which the regulation has been framed, it would appear that the presumption was that the report referred to Sub-section (5) would be implicating the CHA. On this presumption, the next rule and regulation are prescribed. Where the inquiry report is not to the satisfaction of the Commissioner, Regulation 23 makes no provision for dismissal thereof. In fact, the wording of Sub-regulation (6) is that it is mandatory for the Commissioner to furnish the inquiry officer’s report to the CHA, irrespective of whether the enquiry findings are against the CHA or are in his favour. The authority of the Commissioner in Sub-regulation (7) comes into play only after the copy of the enquiry report is furnished to the CHA and his arguments thereupon are on record. The explanation of the succeeding Commissioner that the decision to appoint an inquiry officer is within the parameters of the powers conferred upon him in terms of Sub-regulation (7) has no basis in law. Sub-regulation (7) will find its place only sequentially and cannot come into play by-passing the provisions of Sub-regulation (6).
7. On examination of Regulation 21, we find that the Commissioner did not have any authority to order re-enquiry. The impugned order does not sustain and is set aside.