P. Cawasji and Co. Vs. Commissioner of Customs - Court Judgment

Excerpt:
the applicants are a customs house agent, a proprietary firm for a very long time. the cha licence had validity up to 31-12-1999. on 23-8-1999 a notice was served on the applicants to the effect that an enquiry was instituted against them under regulation 23 of the customs house licensing regulations, 1984 being a part of the procedure for suspending or revoking the cha licence. the cha filed a reply on 22-11-1999. they also filed an application dated 28-9-1999 for renewal of this cha licence. the commissioner of customs passed order, dated 7-2-2000. the concluding paragraph of his order reads as follows: "therefore, i, v.p. singh commissioner of customs (g), mumbai, do hereby in exercise of powers conferred to me under regulation 12[2](b) of customs house licensing regulation, 1984, withhold the renewal of customs house agent's licence held by m/s. p. cawasji & co. cha no.11/319, with immediate effect pending final report of the inquiry officer." against this order the cha filed an appeal and the present application with the following prayer: "(a) this hon'ble tribunal by exercising the inherent power under rule 41 be pleased to grant the stay of the operation of the impugned order, dated 4.2.2000 passed by the learned commissioner of customs and direct the learned commissioner of customs to renew the appellant cha licence on such terms and conditions as this hon'ble court may deem fit and proper; (b) the hearing of the above appeal of the appellant be expedited and same may be filed for any convenient date to this hon'ble court; (c) such further order and direction be given as the nature and circumstances of the case may require be passed in the matter." 2. we have heard shri arun mehta, advocate for the applicants and shri k.l. ramteke for the revenue.3. regulation 12 of the regulations requires a commissioner of customs to examine the following before granting renewal of the cha licence: "(a) quantity of cargo cleared by such licensee conforming to norms as may be prescribed by the commissioner; (b) absence of instances of delay either in the clearance of goods or in the payment of duty for any reason attributable to such licensee and any complaints of misconduct including non-compliance of any of the obligations specified in regulation 14".4. the regulation is silent as to the authority conferred on the commissioner in case he finds that the cha does not qualify on the twin-test stipulated above.5. in the gold (control) act, 1968 section 27 dealt with grant of fresh licence to dealers as well as renewal of an existing licence.sub-section (6)(b) required a notice to be issued before rejection of grant of licence or for renewal of an existing licence. it prescribed the specifications on which the renewal could be refused and also provided for issue of a notice. a similar provision has not been made in the regulations before us. it would, therefore, appear that the framers of the regulations which are issued under the provisions of section 146 of the customs act, 1962 did not consider the renewal of cha licence as a quasi-judicial activity. if it were so, then the commissioner was bound to follow the rules relating to notice etc.where he had done that the resultant order would have qualified for the phrase used in section 129a(1)(a), namely a decision or order passed by the commissioner as an adjudicating authority. in the absence of any provisions requiring the commissioner to follow certain legal procedure, it is difficult to term the order impugned before us as an order passed by the commissioner as an adjudicating authority.therefore it would appear that an appeal to the tribunal would not lie against such an order.6. shri mehta refers us to the preamble to the commissioner's order in which freedom has been given to approach the tribunal. we find that where the law does not call his order an order of adjudication, such conference of appellate authority in the tribunal by him may not assist the cha.7. shri mehta states that the cha are of long standing. he submits that due reply had been filed immediately and that the commissioner has taken no steps during the enquiry conducted by him. he submits that the refusal to renew the licence would have the same effect as revocation or suspension without the cha finally and legally having been found guilty of charges made against them. we see the point in his arguments but are unable to make any orders thereupon in the conclusion that the tribunal had no jurisdiction to go into an order which was not an order made by the commissioner as an adjudicating authority. with these findings we dismiss the application. since the application is dismissed, the appeal does not survive under the law and is dismissed.8. i whole heartedly agree with the conclusion and decision made by my brother.9. during the course of the argument, the learned counsel in a very emphatic and vehement way argued that the tribunal has jurisdiction to entertain the appeal in terms of the provisions of section 129a(a) of the customs act. shri mehta states that this is a decision or order passed by the commissioner of customs as an adjudicating authority. we have to consider the term adjudication found in the above provisions of the customs act. the term adjudicate has been defined by the concise oxford dictionary 8th edition at page 15 as "act as a judge and in a competition, court, tribunal, etc." here the commissioner has not acted as a court or a tribunal. a decision which he has rendered, according to me, is only an administrative decision and not a quasi-judicial decision. it is well known that there is a line demarcating between the administrative decision and a quasi-judicial decision, though the decision may entail civil consequences. supposing in the room in which the customs house agent has to go is not properly cleaned in the customs house, can the customs house agent plead before the commissioner and against the order passed by the commissioner come before the tribunal? a decision rendered in such a case by the commissioner is only an administrative decision. a decision not to renew cha licence can only be an administrative decision and by no means of imagination can it be called as a decision as an adjudicating authority within the meaning of sub-section (a) of section 129a of the customs act? shri mehta vehemently argued before us that the preamble portion of the order, dated 7-2-2000 states that an appeal against this order lies with the regional bench of the cegat, mumbai, therefore he says that the tribunal has jurisdiction. no authority can confer jurisdiction on the tribunal except by any parliamentary enactment. on the contrary, if any adjudicating order levying a duty and imposing a penalty passed by the commissioner which does not contain such a preamble, then can we say that the tribunal does not have jurisdiction because the preamble portion mentioned in that order does not mention that an appeal should lie to the tribunal. obviously, the answer is no.irrespective of the fact that whether the preamble contains the words "an appeal should lie with the regional bench of the cegat", it is irrelevant to consider the jurisdiction of the tribunal. parties by agreement cannot have jurisdiction of a tribunal to hear the matter as stated by me earlier. enactment of the parliament would only confer jurisdiction or deny jurisdiction to hear a matter. the order has been made by the commissioner in respect of the renewal application that such types of applications stand automatically renewed and only in respect of this application such a specific order has been based. in my view this may be a transgression of the principles of equality enshrined in article 14 of the constitution in which remedy does not lie before the tribunal and the remedy lies elsewhere either by filing a declaration or writ petition before the high court or before the supreme court under article 32.1 am therefore of the view that i should wholeheartedly agree with the views just now dictated by my brother.

Judgment:
The applicants are a Customs House Agent, a proprietary firm for a very long time. The CHA licence had validity up to 31-12-1999. On 23-8-1999 a notice was served on the applicants to the effect that an enquiry was instituted against them under regulation 23 of the Customs House Licensing Regulations, 1984 being a part of the procedure for suspending or revoking the CHA licence. The CHA filed a reply on 22-11-1999. They also filed an application dated 28-9-1999 for renewal of this CHA licence. The Commissioner of Customs passed order, dated 7-2-2000. The concluding paragraph of his order reads as follows: "Therefore, I, V.P. Singh Commissioner of Customs (G), Mumbai, do hereby in exercise of powers conferred to me under Regulation 12[2](b) of Customs House Licensing Regulation, 1984, withhold the renewal of Customs House Agent's Licence held by M/s. P. Cawasji & Co. CHA No.11/319, with immediate effect pending final report of the Inquiry Officer." Against this order the CHA filed an appeal and the present application with the following prayer: "(a) This Hon'ble Tribunal by exercising the inherent power under Rule 41 be pleased to grant the stay of the operation of the impugned order, dated 4.2.2000 passed by the Learned Commissioner of Customs and direct the Learned Commissioner of Customs to renew the Appellant CHA Licence on such terms and conditions as this Hon'ble Court may deem fit and proper; (b) The hearing of the above appeal of the Appellant be expedited and same may be filed for any convenient date to this Hon'ble Court; (c) Such further order and direction be given as the nature and circumstances of the case may require be passed in the matter." 2. We have heard Shri Arun Mehta, Advocate for the applicants and Shri K.L. Ramteke for the revenue.

3. Regulation 12 of the Regulations requires a Commissioner of Customs to examine the following before granting renewal of the CHA licence: "(a) Quantity of cargo cleared by such licensee conforming to norms as may be prescribed by the Commissioner; (b) Absence of instances of delay either in the clearance of goods or in the payment of duty for any reason attributable to such licensee and any complaints of misconduct including non-compliance of any of the obligations specified in regulation 14".

4. The regulation is silent as to the authority conferred on the Commissioner in case he finds that the CHA does not qualify on the twin-test stipulated above.

5. In the Gold (Control) Act, 1968 Section 27 dealt with grant of fresh licence to dealers as well as renewal of an existing licence.

Sub-section (6)(b) required a notice to be issued before rejection of grant of licence or for renewal of an existing licence. It prescribed the specifications on which the renewal could be refused and also provided for issue of a notice. A similar provision has not been made in the Regulations before us. It would, therefore, appear that the framers of the Regulations which are issued under the provisions of Section 146 of the Customs Act, 1962 did not consider the renewal of CHA licence as a quasi-judicial activity. If it were so, then the Commissioner was bound to follow the rules relating to notice etc.

Where he had done that the resultant order would have qualified for the phrase used in Section 129A(1)(a), namely a decision or order passed by the Commissioner as an adjudicating authority. In the absence of any provisions requiring the Commissioner to follow certain legal procedure, it is difficult to term the order impugned before us as an order passed by the Commissioner as an adjudicating authority.

Therefore it would appear that an appeal to the Tribunal would not lie against such an order.

6. Shri Mehta refers us to the preamble to the Commissioner's order in which freedom has been given to approach the Tribunal. We find that where the law does not call his order an order of adjudication, such conference of appellate authority in the Tribunal by him may not assist the CHA.7. Shri Mehta states that the CHA are of long standing. He submits that due reply had been filed immediately and that the Commissioner has taken no steps during the enquiry conducted by him. He submits that the refusal to renew the licence would have the same effect as revocation or suspension without the CHA finally and legally having been found guilty of charges made against them. We see the point in his arguments but are unable to make any orders thereupon in the conclusion that the Tribunal had no jurisdiction to go into an order which was not an order made by the Commissioner as an adjudicating authority. With these findings we dismiss the application. Since the application is dismissed, the appeal does not survive under the law and is dismissed.

8. I whole heartedly agree with the conclusion and decision made by my brother.

9. During the course of the argument, the learned counsel in a very emphatic and vehement way argued that the Tribunal has jurisdiction to entertain the appeal in terms of the provisions of Section 129A(a) of the Customs Act. Shri Mehta states that this is a decision or order passed by the Commissioner of Customs as an adjudicating authority. We have to consider the term adjudication found in the above provisions of the Customs Act. The term adjudicate has been defined by the Concise Oxford Dictionary 8th Edition at page 15 as "act as a judge and in a competition, court, tribunal, etc." Here the Commissioner has not acted as a court or a tribunal. A decision which he has rendered, according to me, is only an administrative decision and not a quasi-judicial decision. It is well known that there is a line demarcating between the administrative decision and a quasi-judicial decision, though the decision may entail civil consequences. Supposing in the room in which the Customs House Agent has to go is not properly cleaned in the Customs House, can the Customs House Agent plead before the Commissioner and against the order passed by the Commissioner come before the Tribunal? A decision rendered in such a case by the Commissioner is only an administrative decision. A decision not to renew CHA licence can only be an administrative decision and by no means of imagination can it be called as a decision as an adjudicating authority within the meaning of Sub-section (a) of Section 129A of the Customs Act? Shri Mehta vehemently argued before us that the preamble portion of the order, dated 7-2-2000 states that an appeal against this order lies with the regional bench of the CEGAT, Mumbai, therefore he says that the Tribunal has jurisdiction. No authority can confer jurisdiction on the Tribunal except by any Parliamentary enactment. On the contrary, if any adjudicating order levying a duty and imposing a penalty passed by the Commissioner which does not contain such a preamble, then can we say that the Tribunal does not have jurisdiction because the preamble portion mentioned in that order does not mention that an appeal should lie to the Tribunal. Obviously, the answer is no.

Irrespective of the fact that whether the preamble contains the words "an appeal should lie with the regional bench of the CEGAT", it is irrelevant to consider the jurisdiction of the Tribunal. Parties by agreement cannot have jurisdiction of a tribunal to hear the matter as stated by me earlier. Enactment of the Parliament would only confer jurisdiction or deny jurisdiction to hear a matter. The order has been made by the Commissioner in respect of the renewal application that such types of applications stand automatically renewed and only in respect of this application such a specific order has been based. In my view this may be a transgression of the principles of equality enshrined in Article 14 of the Constitution in which remedy does not lie before the Tribunal and the remedy lies elsewhere either by filing a declaration or writ petition before the High Court or before the Supreme Court under Article 32.1 am therefore of the view that I should wholeheartedly agree with the views just now dictated by my brother.