ORDER
Gowri Shankar, Member (T)
1. After hearing the parties on the stay application, we have decided to take up the appeal.
2. The appeal is against the order of the Commissioner suspending,
under Regulation 21(2) of the Customs House Agents Licensing Regulations,
1984 (hereafter regulation), the Custom House Agent’s licence issued to the
applicant. The stay application was first heard on 12th August and was ad
journed twice to today so that the departmental representative could submit
further details.
3. The Commissioner has advanced two reasons for suspension of the licence. The first is that R.G. Gawade, who was customs clerk of the appellant at the relevant time, assaulted an officer of the Directorate of Revenue Intelligence, apparently trying to prevent the officer from discharging his official duties and was arrested for this offence. The second is that action has been initiated against the appellant under Regulation 23 for contravention of various regulations.
4. As to the first charge, counsel for the appellant contends that if there was any assault by Gawade on any officer, it was not performed in the course of his duties as a clerk but purely in his personal capacity. Furthermore, as soon as the appellant came to know of the alleged assault on 12th June, 2002, it terminated his services and informed the Custom House. He produces before us a letter addressed to the Deputy Commissioner of Customs in charge of the department dealing with Custom House Agents, intimating him of the fact that Gawade was no longer in the appellant’s employment and requesting him for cancellation of his customs pass, which was enclosed. This letter has been received by the department on the same day.
5. The departmental representative refers to the provisions of Sub-regulation (7) of Regulation 20 of the regulation. This regulation provides, ‘”The Customs House Agent shall exercise such supervision as may be necessary to ensure the proper conduct of any such employees in the transaction of business as agent and he held responsible for all acts or omissions of his employees in regard to their employment.” This sub-regulation obviously applies only to such acts or conduct of an employee of the Customs House Agent in relation to performance by him of duties as such an employee; it obviously cannot extend to the private or personal conduct of such an employee over which the Customs House Agent can have no, control. There is no allegation that the assault of the officer (if it took place) was at the direction or behest of the appellant or was done in furtherance of his duties as an employee of it. We however do not find that there was sufficient ground for the suspension of the licence.
6. The second reason advanced by the Commissioner relates to some past acts that the appellant has contravened various provisions of the regulation. The departmental representative cites before us a notice issued on 6-11-2001 proposing to hold an enquiry against the appellant under Regulation 23. Six articles of charge have been framed against the appellant, mainly alleging that the appellant accepted commission for allowing its licence to be used by others, the appellant does not lake authorisation from its clients; that
it does not keep record of the clearances; that it charged Banco Products Ltd. in excess of the rates approved by the Commissioner and that the applicant handled the matter relating to revocation of the power of attorney given to Amber Mufti ineptly. There is some repetition of the allegations.
7. We do not wish to comment upon the correctness or otherwise of the allegations against the appellant, leaving it to the appropriate authority to decide this aspect. It is however of significance that the acts, which had led to the issue of notice, took place in 1999 and enquiries which were made into these allegations by the investigating agency appear to have been completed in March, 2000. The report of the Central Intelligence Unit of the Customs House in this regard was filed in March, 2000. From this, it can reasonably be concluded that the Commissioner would have become aware of these acts by, say, April or May of that year. Yet no action was taken then to suspend the licence and the appellant continued to function as an agent for two years. In other words, the department did not perceive that the acts in respect of which the notice has been issued were such as to warrant immediate suspension in terms of Regulation 21(2). In that situation, it is difficult to see how, after two years, it has become necessary to suspend the licence on account of these acts. When faced with this situation, the departmental representative says that the main cause of the suspension was the alleged assault carried by Gawade. We have already dealt with this matter.
8. It follows therefore that there was no basis for suspension of the licence. The suspension ordered by the Commissioner is therefore revoked, allowing the appeal. We emphasise that the enquiry officers or the Commissioner shall not in any way feel bound, while dealing with either the matter ‘relating to the alleged assault or the notice already issued, by any observation that we have made in this order. We however expect that these matters will be finalised by them without undue delay. We also record the statement of the counsel for the appellant that his client will co-operate in expeditious finalisation.