Nilesh Shipping Agency Vs. Collector of Customs - Court Judgment

Excerpt:
1. this appeal is directed against the order passed by the collector of customs, bombay, bearing no. s/8-5/92 admn. dated 17.3.1993 in exercise of his powers conferred under regulation 21(1)(c) read with regulation 23(7) of the custom house agents licensing regulations, 1984 (hereinafter referred to as "the cha regulations") declaring mr.bhupendra b. adatia, the partner in the cha firm m/s. nilesh shipping agency unfit to transact business as clearing agent in any of the customs sections and also revoking the cha licence no. 11/659 held by m/s. nilesh shipping agency.2. only the cha firm has come in appeal against the said order and mr.bhupendra adatia, in his individual capacity has not preferred any appeal, in relation to the order holding him unfit to transact business as clearing agent.3. proceedings culminating in passing of the impugned order have the nexus to gathering of report through their intelligence wing by the directorate of revenue intelligence, (dri) about clandestine clearing of ball bearings from central warehousing corporations (cwc) warehouse at cotton green, bombay, pursuant to which, the officers visited the said warehouse on 24.12.1990. the inspection revealed that one consignment of ball bearing, imported by greaves international, bombay, and warehoused vide section 59 of the customs act, was lying unclaimed for a long time, and that three ex-bond bills of entry for home consumption, were filed by one firm m/s. arvind engineering co., claiming themselves to be the purchasers at the high sea sale, for the part of the said consignment, where the goods were also misdeclared as koya-bushes/bushers, and the major part of the consignment so got released under those three ex-bond bills of entry, was already removed on payment of requisite duty payable on bushes and other charges. the investigations revealed that the firm m/s. arvind engineering co. was a fictitious firm and no high sea sale transaction was effected with them, and that one mr. desh deepak gupta had signed and had filed those three ex-bond bills of entry and had misdeclared the goods, and that mr. bhupendra adatia of m/s. nilesh shipping agency, a licensed cha firm had, without obtaining any authorisation from said mr. gupta, assisted him in processing those bills of entry, and in making payment of duty and other charges. in course of further investigation, business premises of the said cha firm were searched, but nothing incriminating was found. however mr. bhupendra adatia, was not available for immediate interrogation. residential premises of mr. d.d. gupta were also searched from where some incriminating documents and certain quantity of ball bearings were found. both mr. bhupendra adatia and mr.d.d. gupta, however, appeared before the dri officials on 4.1.1991, and in their preliminary interrogation, both of them reportedly admitted acts of misrepresentations, misdeclaration and removal of certain quantity from the goods, thereby got released by them. they also reportedly offered to retrieve the goods so released, and pursuant thereto, mr. bhupendra adatia, did retrieve certain quantity, though he could not procure the full quantity thereof. statements of both of them were recorded on 4.1.1991, and mr. desh deepak gupta, in his statement, inter alia stated that he came in contact with mr. bhupendra adatia and it was bhupendra who briefed him about one unclaimed consignment of ball bearings lying in cwc warehouse and suggested to float a bogus firm and claim the part of the goods on the plea of high sea purchase and file ex-bond bills of entry. mr. gupta further stated it was only mr. bhupendra adatia who managed to fabricate the documents and drew the bills of entry, initially in january 1989, and got them endorsed for release subject to verification but no further action thereon was taken, and in may 1990 bhupendra suggested that bill of entry could be filed on misdeclaration of goods as bushes, as thereby they could save substantial amount from the duty payable and bhupendra prepared four ex-bond bills of entry and induced him (mr. gupta) to sign them as proprietor of m/s. arvind engineering co., assuring him payment of about rs. 35,000/- and took them for noting in the bond department register etc. and had got them assessed in august, 1990 but it was only in december, 1990, the goods were cleared against three of the four ex-bond bills of entry. according to mr. gupta, mr. bhupendra adatia was to invest money for payment of duty, interest, warehousing charges and on 18.12.1990 and 19.12.1990 bhupendra took three ex-bond bills of entry from him for further processing in the assessment group, for duty calculation etc. and made payments for the same and took the delivery, when his employee mr. v.p. arunkumar had remained present who got the goods loaded in a tempo arranged by mr. bhupendra adatia. mr. gupta admitted the documents to be bogus, as also to have received some amount from mr. bhupendra adatia. in his statement recorded, said mr.bhupendra adatia, admitted his acquaintance with mr. d.d. gupta, and also admitted to have handled four ex-bond bills of entry, which were filed on 'self' basis by said mr. gupta and to have taken them to the assessment group. he however stated that he had done so in his personal capacity and not as an official representative of the cha firm, as those bills of entry were never handed over to the cha firm. he further stated that he had handed over those ex-bond bills of entry to mr.gupta and was in no way concerned with the clearance of the goods, and that it was only at the time when certain goods were put on auction sale by the department and found those goods in the list of goods to be auctioned that he suspected the fraud committed by mr. gupta. he however admitted to have arranged for funds to pay the duty etc. on the offer made by mr. gupta to pay some commission, but stated that it was mr. gupta who took the delivery. mr. bhupendra however, admitted to have had some discussions with mr gupta in relation to the release of the consignment (details whereof are duly recorded in his statement).in the process of investigation, statement of mr v.p. arunkumar was also recorded, who admitted to have attended the process of taking delivery of the goods, and to have got them loaded in a tempo arranged by mr. bhupendra.2.2. on completion of the investigation, show cause notice dt.21.6.1991 was served, amongst others, on mr d.d. gupta and mr.bhupendra adatia, for the purpose of ordering confiscation of the goods vide provisions of section 111 of the customs act, and for imposing personal penalty, vide section 112 of the act, on them.2.3. the said show cause notice was adjudicated upon, by the collector of customs (judicial), who, vide his order no. s/10-33/dri/bzu/91 dt.8.1.1992 for the reasons recorded therein, dropped the proceedings, against all the noticees. in paras 53 and 54 of his order the said adjudicating authority however observed thus: 53. for filing fraudulent documents in the manner as has been done in this case, there is a clear criminal case against mr. d.d. gupta and mr. b.b. adatia which should be immediately reported to the police authorities for taking action under i.p.c. 54. secondly, on the basis of what has come on record the conduct of mr. b.b. adatia, partner of the cha firm m/s nilesh shipping agency appears to be highly mischievous and straightaway his cha licence should be suspended. this may be immediately reported to ac(cha) for appropriate action.2.4. no appeal is reported to have been preferred against the said order, either by the department or by any of the noticees individually as also by the cha firm.the collector of customs, bombay, in exercise of his powers under regulation 21(2) of the cha regulations, vide his order dt. 14.2.1992 suspended the licence of the cha firm, m/s nilesh shipping agency, on the ground that regular enquiry against them was under contemplation.4.1. vide notice dt. 8.5.1992, the collector of customs, in exercise of his powers under regulation 23 of the cha regulations, called upon the cha firm to show cause why the cha licence should not be cancelled, levelling the charges which in brief, are: (1) the firm had attended the work relating to clearance of goods for a fictitious firm m/s arvind engineering co. without proper authorisation and thus contravened regulation 14(1) of the cha regulations. (2) the firm acted in a way unbecoming of a cha firm by providing assistance to one mr. d.d. gupta, for a monetary consideration though it was known that the firm m/s arvind engineering co. was a fictitious firm and mr. gupta was not a proprietor, and thereby contravened the provisions of regulation 14(d) of the cha regulations. (3) the firm gave advice to mr. gupta to create a fictitious firm and assisted him in filing three ex-bond bills of entry under misrepresentation of high sea purchase, and paid duty and other charges and thereby contravened the provisions of regulation 14(e) of the cha regulations. (e) unauthorisedly removed the goods and committed misconduct punishable under regulation 21(1) of the cha regulations.in the said notice, reference was also made to the proceedings initiated under the provisions of the customs act, 1962 where it was contended that all the acts alleged were the individual acts of mr.bhupendra adatia, but it was averred that said mr. bhupendra being the only working partner of the cha firm, he had duminified high fiduciary position vested in him because of his being cha licence holder, which tantamount to misconduct on his part.4.2. assistant collector of customs, group 3, was appointed as enquiry officer.4.3. the cha firm, in reply to the said show cause notice, pleaded that cha m/s nilesh shipping co. was a registered partnership firm with mr.bhupendra adatia, as one of its partner. a plea was raised that the firm had neither filed the three ex-bond bills of entry nor were they ever handed over to them for processing and that no customer-agent relationship ever existed between the firm and m/s arvind engineering co. or its alleged proprietor mr. d.d. gupta. it was emphasised that acts of rendering assistance to mr. d.d. gupta by mr bhupendra adatia, in getting three ex-bond bills of entry assessed in the appraising group, arranging funds for payment of duty and deputing their employee to take delivery of goods, were all done by him in his individual capacity and the cha firm was neither concerned nor derived any benefit therefrom.4.4. the enquiry officer, vide his report dt. 24.8.1992, observed that the only evidence available was the admissions made by mr bhupendra adatia, and the statement against him given by mr. d.d. gupta. he however refrained from considering the statement of mr. gupta, as though summoned, mr. gupta did not appear to attend the enquiry proceedings, and as such there was no evidence, on record, to show that the cha firm attended to the bills of entry, and confined himself to the admission of mr. bhupendra that he had only rendered assistance to mr. gupta in getting the bills assessed early. as regards the amounts allegedly paid by the cha firm, he held that the bank account showed that cash deposit and pay order obtained from the bank for payment of duty were of the same day or the next day and there was no evidence that the money came from the cha firm. referring to the statement of mr. v.n. arunkumar recorded at the enquiry, denying his presence at the time of taking delivery, he held that there was no evidence of cha firm having provided any transport. as regards recovery of goods from bhupendra adatia, he observed that the recovery panchnama was signed by mr. bhupendra in his individual capacity. the enquiry officer thus concluded that there was no contravention of any of the provisions of the cha regulations by the firm. at the same time, he also made the following observations: the acts of mr. bhupendra b. adatia in attending to the work of (a) assessment of 3 ex-bond bs/e in the apprg. group, (b) the arranging of funds for paying customs duty (c) providing transport facilities and deputation of an employee of his to take delivery of goods show that mr. bhupendra b. adatia had taken more than usual interest in providing assistance in the clearance of the goods. being a partner of a registered customs house agency, he should have been aware of the code of conduct under the provisions of cha licensing regulation, 1984. he should have also seen that this unusual interest shown by him in extending assistance in clearance of goods would some day put his firm into the present difficulties.in the opinion of the enquiry officer, some action could be taken against mr. bhupendra adatia as the holder of customs pass.4.5. the collector of customs, as the competent authority, however, did not agree with the conclusions drawn by the enquiry officer and while forwarding the copy of the report of the enquiry officer, he also served the cha firm with a notice to show cause why he should not draw a different conclusion and cancel the licence.4.6. the cha firm in their reply dt. 28.12.1992, however, reiterated the stand that the major formalities were attended to by mr. d.d. gupta himself and that functions attributed to mr. bhupendra adatia were in his individual capacity.4.7. the collector of customs has however not accepted the conclusions drawn in the report of the enquiry officer as also the plea of the cha firm and has held that mr. bhupendra adatia cannot disown the liability of the firm, as vide section 26 of the indian partnership act, 1932, the wrongful acts of the partner bind the firm. he has also observed that the partnership firm comprises of only two partners namely mr.bhupendra and his wife, and mr. bhupendra is the only person qualified under the cha regulations, to be eligible to possess the cha licence.the collector has then referred to the judgment of the supreme court in c.k. pradhan and ors. v. collector of customs, bombay has passed the impugned order.5.1. mr. pochhkhanwala, the ld. advocate for the appellant, while not challenging the right of the collector to differ from the finding given by the enquiry officer, has pleaded that the show cause notice issued by the collector after the report from the enquiry officer, is a mere reiteration of the grounds specified in the first notice, and does not specify the grounds which prima facie, weighed with the collector to differ from the findings of the enquiry authority. in his submission, thus, the second show cause notice is bad in law. he has also pleaded that the proceedings initiated under the provisions of the customs act, were against mr. d.d. gupta, and mr. b.b. adatia is their individual capacity and the cha firm was never taken as involved and that the observations of the collector (judicial), recommending initiating proceedings against cha firm were beyond due exercise of his powers.main thrust of the arguments of mr. pochhkanawala is on the point that m/s nilesh shipping co., is a distinct and separate entity and any act done by mr. bhupendra adatial (sic), in his individual capacity, could not affect the partnership firm. the ld advocate has more than once, reiterated that there is nothing on record to show that the cha firm was involved. challenging the applicability of the provision of section 26 of the indian partnership act, 1932 the ld. advocate has pleaded that the said provisions could apply only when the partner acts "during the ordinary course of business". on merits, the ld. advocate has submitted that with mr. d.d. gupta not examined as a witness, his statement recorded under the provisions of the customs act cannot be considered, and for that purposes, has referred to the decision of this bench in thakkar shipping agency v. collector of customs and has pleaded that with statement of mr. d.d. gupta being not available as evidence, and with no other evidence showing involvement of the firm; from what has been admitted by mr. bhupendra adatia, involvement of the firm is not established, and the action of mr. bhupendra adatia was purely in his individual capacity and that too by way of liaison between the officers and mr. gupta. as an alternative submission, the id. advocate has pleaded that the cha firm was the only source of livelihood for the family, and now mr. bhupendra is also suffering from some serious ailment, and the family is facing severe financial constraints, and that with period of two years already over, the order of permanent cancellation of the licence be converted into cancellation for a specified period, and for that purpose two years period be considered as adequate.5.2. mr. k.m. mondal, the ld. sdr, while supporting the order, has pleaded that there is virtually no challenge to the alleged acts which tend to show the behaviour as unbecoming of a cha firm, but the contention raised is only about those acts being the acts of mr.bhupendra adatia in his individual capacity, and has submitted that the partnership firm is, under the law, not conferred the status of a juristic person, and as such, the partner is an inseparable entity for the firm. further, as is submitted by the ld. sdr, the partnership comprises of mr. bhupendra and his wife, and it is only mr. bhupendra who has qualified himself under the cha regulation and it is not possible to draw any line to identify his activity as an individual and as a partner, and when the activity admitted to have been undertaken by him which is the subject matter here, is the same which a cha firm is licensed to perform, provisions of section 26 of the partnership act, 1932, would stand attracted. he has also pleaded that even otherwise, the fact that he has acted in the capacity as the partner of the firm is evident from the fact that the deposit of the money and withdrawal thereof for payment of duty etc. are from the bank account operated in the name of the firm. on merits, he referred to the evidence to show that even the admitted acts on the part of mr. bhupendra adatia, were in contravention of the obligations imposed on the cha, and if they are held to have been performed by or on behalf of the firm, they tantamount to contravention of the provisions of regulation 14 of the cha regulations. the ld. sdr has also reiterated the observations of the supreme court in chandrakant krishnarao pradhan v. collector which has been referred to by the 6. considering the submissions made and going through the records made available, it is an undisputed position that cha licence holder is a registered partnership firm, comprising of mr. bhupendra adatia, and his wife, and there is no third partner. it is also not pleaded that the wife of mr. bhupendra is taking active part in their activity as a customs house agent. mr. bhupendra alone has qualified himself to hold the cha licence, as per requirements laid down in the cha regulations, and he alone, is authorised to transact the business.7. the licence so issued and authorisation so given, entitled mr.bhupendra adatia, to act as an agent for the importer and to carry out all such acts which an importer is otherwise, required to do it by himself, and this includes the work of presentation of bills of entry, getting the assessment done and getting the duty and other charges paid etc.8. as extracted in the earlier part of this order, the enquiry officer has in his report dt. 24.9.1992, concluded that mr. bhupendra adatia had (1) got the ex-bond bills of entry assessed (2) arranged for the funds and (3) provided transport. there is also no challenge to the fact that this mr. bhupendra adatia retrieved certain quantity of ball bearings which were got released under those ex-bond bills of entry. in the reply to the first show cause notice under, the provisions of the cha regulations also, it is admitted that those ex-bond bills of entry were got assessed by mr. bhupendra, who, in his interrogation before the enquiry officer on 16.9.1992, not only admits to have so done, but has further stated that because there was some defect, he advised mr.gupta to get the same rectified at the bond department. it is also admitted in the reply to the show cause notice, as also in the interrogation before the enquiry officer, that mr. bhupendra introduced the prospective buyers to mr. gupta, and through them the amount for payment of duty and other charges was arranged and mr. bhupendra has admitted before the enquiry authority that the amount so gathered was deposited in the bank account of the cha firm and was then withdrawn.it is also admitted by mr. bhupendra before the enquiry officer that he had sent his employee mr. p.v. arunkumar, with mr. gupta to the cwc warehouse, at the time of taking delivery and has assigned the reason therefor that he wanted to ensure that correct delivery was taken as the purchasers had advanced money at his instance.9. when mr. desh deepak gupta, has not been examined as a witness in these proceedings and as is held by this bench in re : thakkar shipping agency (supra), statement recorded under section 108 of the customs act, of a person who is not examined as a witness in the proceedings under the cha regulations, cannot be taken into consideration, it is not open in the present appeal proceedings to look into the same, but even going by what has been admitted by mr. bhupendra adatia himself, it is not possible to accept the plea that he merely acted as a liaison person. if he was only casually assisting mr. gupta, on casual acquaintance with him, he would have taken no interest, after he got the ex-bond bills of entry assessed. here, however, as admitted by himself, he thereafter helped mr. gupta to find out buyers, raise funds from them, deposit the amount so raised in the bank account operated by him, depute his own employee at the time of taking delivery and the most important, it is mr. bhupendra who has retrieved major portion of the goods. a fake attempt is made by him to plead that he retrieved the goods with a view to assist the department, but his act of retrieving the goods clearly indicate that he was not only aware of how the disposal of the goods was made but even had some command over the same which enabled him to retrieve the same with ease. all this is not conducive to his plea that he merely extended a helping hand to mr.gupta, limited to getting 3 ex-bond bills of entry assessed. on the contrary, this establishes his complete involvement. further having got the three ex-bond bills of entry assessed, mr. bhupendra must have known that the assessment was on the goods declared in bushes, and what he has retrieved are the ball bearings, and it would be beyond a rational reasoning that mr. bhupendra was ignorant of all these facts, particularly when he admits to have procured the customers/purchasers for the said goods. thus even going by what mr. bhupendra himself has admitted, it is clear that he had completely involved himself in the said transaction, if not by putting mr. gupta as the front, by fully associating himself in the fraud committed.10. the thrust of the contentions raised before the lower authorities as also here, is that all these acts were performed by said mr.bhupendra adatia in his personal capacity, and the question that obviously crops up is whether it is possible to demarcate between the acts done by mr. bhupendra in his alleged individual capacity and as a partner of the firm.11. the firm comprises of only two partners, namely mr. bhupendra adatia and his wife mrs. hansa adatia, and it is on their own admission, as is reflected from the pleadings and particularly the statement of dates and events submitted by the appellants at the commencement of hearing of the appeal, that mrs. hansa adatia is merely a sleeping partner. thus mr. bhupendra adatia is the only working partner of the firm. he is the only person from amongst the partners of the firm who is qualified under the cha regulations, to transact the work at the custom house for and on behalf of the firm, and it is only he who holds the pass. as regards the subject transaction also, he has utilised the bank account of the firm and has further utilised the services of the firm's employee mr. v.p. arunkumar. it also cannot be overlooked that it was only by virtue of his having held the cha pass that he had an access to various departments in the custom house, as otherwise, being not an importer himself, he would have no locus standi. more significantly, even as on today, it is only mr. bhupendra who has continued to identify himself with the firm, by responding to the show cause notice, issued to the cha firm under the provisions of cha regulations, and has participated in the proceedings before the enquiry officer and the collector as the representative of the firm, and ca-3 form submitted by the appellants for the purpose of present appeal, as also verification below the same, bear the signatures of only mr. bhupendra adatia. no evidence, is brought, even not in the form of an affidavit of the second partner namely mrs hansa adatia, to the effect that she has ever participated in the working of the cha firm, or even now intends to alter her status from the one of a sleeping partner to an active partner. the circumstances thus, clearly indicate that the working at the cha firm is virtually a one man show of mr. bhupendra adatia, and it is not possible to accept the plea that he was, for the purpose of subject transaction, working in his individual capacity distinct from his capacity as a partner of the firm. drawing of a demarcating line is practically impossible. there is also no declaration made by the other partner at any stage till this day, that mr. bhupendra had no authority to transact the subject transaction on behalf of the firm, and plea that he acted in his individual capacity also has come only from mr. bhupendra himself and none else.12. further, there is no challenge to the fact that mr. bhupendra is a partner in the cha firm, and cha firm is licensed to transact business of the type undertaken by mr. bhupendra in the subject incident.section 26 of the indian partnership act, 1932, provides for the liability of the firm for the wrongful acts of the partner, done in the ordinary course of business of the firm. the provisions of the said section are based on the principle of partnership liability as also liability of the principal for the wrongful act of his agent. under the partnership act each partner is an agent for the other partners and the firm constituted. on applicability of the said provisions, the firm remains liable for the acts of the partner if the acts fall within the scope of the authority of the partner to do so by legitimate means and that the partner had the general authority to do the same. the said provision would also cover the cases where the acts so done by the partner were by wrongful or illegal means. the case law on the interpretation of this section, also lays down that even the acts of tort committed by the partner in the course of business, which he was authorised to do as a partner, on behalf of the firm; would render the firm liable for the same.13. no further deliberation appears necessary to hold that all acts of mr. bhupendra, which even otherwise cannot be segregated from his acts as the managing partner of the firm, would even by virtue of the provisions of section 26 of the indian partnership act, render the firm liable for the same. the submission of the learned advocate that the acts of mr. bhupendra could not be taken as those performed during the ordinary course of business of the firm cannot be accepted.14. mr. bhupendra adatia has undisputedly attended to the works of getting the three ex-bond bills of entry assessed, and as such undertaken the work of cha without obtaining proper authorisation, and has aided, abetted and participated in a way unbecoming of a custom house agent, and hence the findings arrived at by the collector of customs in exercise of his powers under section 23(7) of the cha regulations' cannot be held to have been not correct or that the findings arrived at by him are not sustainable.15. before parting it may also be observed that a plea was raised about not serving of the notice to show cause to the firm. that was however in relation to the show cause notice in relation to the proceedings under the customs act. so far as the proceedings under the cha regulations are concerned, and in relation to which the present set of proceedings have been initiated, the show cause notice is duly served on the appellant firm, and as such, the validity or otherwise 'of the notice for proceedings under the customs act, assume little significance. for the purpose of the present proceedings' the conclusions are based on what has been admitted by mr. bhupendra adatia, in these very proceedings and partly on some observations made by the adjudicating authority in the other proceedings, against which even mr. bhupendra adatia has not chosen to prefer any appeal. even otherwise, the notice in those proceedings appear to have been served on mr. bhupendra adatia as the partner of the cha firm and undisputedly, he is the only working partner, with other partner being only a sleeping partner and the notice to the sole working partner could be taken as the notice to the firm but assuming that to be not so, the said show cause notice has no direct bearing on the present set of proceedings, and hence the said aspect does not call for any decision, and the conclusion drawn hereinabove, could not in any way stand altered or affected. the judicial pronouncements referred to by the id. advocate are therefore not considered.16. under the circumstances, the order cancelling the licence appears to be just and proper and stands confirmed.17. by way of an alternative plea, it is submitted that the order of cancellation of a licence permanently be substituted by an order cancelling it for a specified period. it is also pleaded that licence has already stood cancelled for the last two years, and the said period be considered as adequate. it is orally pleaded that mr. bhupendra adatia is suffering from a very serious type of ailment which has even endangered his survival. it could have been possible to adopt some humanitarian approach in the matter, if mr. bhupendra was one amongst many partners and the other partners also were qualified for transacting business of the firm. here, as is observed earlier, it is only a one man show of mr. bhupendra, and he has been even otherwise held as disqualified to hold the customs pass and the pass is ordered to be withdrawn and no appeal is preferred by mr. bhupendra in his individual capacity so far as that part of the order is concerned. thus mr. bhupendra adatia does not now remain qualified to transact any business and it was only on his qualifying to act as cha, that the firm was granted the licence. under these circumstances, with whatever sympathy that may be attempted to be generated, it is not possible to concede to the request made.

Judgment:
1. This appeal is directed against the Order passed by the Collector of Customs, Bombay, bearing No. S/8-5/92 Admn. dated 17.3.1993 in exercise of his powers conferred under Regulation 21(1)(c) read with Regulation 23(7) of the Custom House Agents Licensing Regulations, 1984 (hereinafter referred to as "the CHA Regulations") declaring Mr.

Bhupendra B. Adatia, the partner in the CHA firm M/s. Nilesh Shipping Agency unfit to transact business as clearing agent in any of the Customs sections and also revoking the CHA Licence No. 11/659 held by M/s. Nilesh Shipping Agency.

2. Only the CHA firm has come in appeal against the said order and Mr.

Bhupendra Adatia, in his individual capacity has not preferred any appeal, in relation to the order holding him unfit to transact business as clearing agent.

3. Proceedings culminating in passing of the impugned order have the nexus to gathering of report through their intelligence wing by the Directorate of Revenue Intelligence, (DRI) about clandestine clearing of Ball Bearings from Central Warehousing Corporations (CWC) warehouse at Cotton Green, Bombay, pursuant to which, the officers visited the said warehouse on 24.12.1990. The inspection revealed that one consignment of Ball Bearing, imported by Greaves International, Bombay, and warehoused vide Section 59 of the Customs Act, was lying unclaimed for a long time, and that three Ex-Bond Bills of Entry for Home Consumption, were filed by one firm M/s. Arvind Engineering Co., claiming themselves to be the purchasers at the High Sea Sale, for the part of the said consignment, where the goods were also misdeclared as Koya-Bushes/Bushers, and the major part of the consignment so got released under those three Ex-Bond Bills of Entry, was already removed on payment of requisite duty payable on Bushes and other charges. The investigations revealed that the firm M/s. Arvind Engineering Co. was a fictitious firm and no High Sea Sale transaction was effected with them, and that one Mr. Desh Deepak Gupta had signed and had filed those three Ex-Bond Bills of Entry and had misdeclared the goods, and that Mr. Bhupendra Adatia of M/s. Nilesh Shipping Agency, a licensed CHA firm had, without obtaining any authorisation from said Mr. Gupta, assisted him in processing those Bills of Entry, and in making payment of duty and other charges. In course of further investigation, business premises of the said CHA firm were searched, but nothing incriminating was found. However Mr. Bhupendra Adatia, was not available for immediate interrogation. Residential premises of Mr. D.D. Gupta were also searched from where some incriminating documents and certain quantity of Ball Bearings were found. Both Mr. Bhupendra Adatia and Mr.

D.D. Gupta, however, appeared before the DRI Officials on 4.1.1991, and in their preliminary interrogation, both of them reportedly admitted acts of misrepresentations, misdeclaration and removal of certain quantity from the goods, thereby got released by them. They also reportedly offered to retrieve the goods so released, and pursuant thereto, Mr. Bhupendra Adatia, did retrieve certain quantity, though he could not procure the full quantity thereof. Statements of both of them were recorded on 4.1.1991, and Mr. Desh Deepak Gupta, in his statement, inter alia stated that he came in contact with Mr. Bhupendra Adatia and it was Bhupendra who briefed him about one unclaimed consignment of Ball Bearings lying in CWC warehouse and suggested to float a bogus firm and claim the part of the goods on the plea of High Sea Purchase and file Ex-Bond Bills of Entry. Mr. Gupta further stated it was only Mr. Bhupendra Adatia who managed to fabricate the documents and drew the Bills of Entry, initially in January 1989, and got them endorsed for release subject to verification but no further action thereon was taken, and in May 1990 Bhupendra suggested that Bill of Entry could be filed on misdeclaration of goods as Bushes, as thereby they could save substantial amount from the duty payable and Bhupendra prepared four Ex-Bond Bills of Entry and induced him (Mr. Gupta) to sign them as Proprietor of M/s. Arvind Engineering Co., assuring him payment of about Rs. 35,000/- and took them for noting in the Bond Department Register etc. and had got them assessed in August, 1990 but it was only in December, 1990, the goods were cleared against three of the four Ex-bond Bills of Entry. According to Mr. Gupta, Mr. Bhupendra Adatia was to invest money for payment of duty, interest, warehousing charges and on 18.12.1990 and 19.12.1990 Bhupendra took three Ex-Bond Bills of Entry from him for further processing in the Assessment Group, for duty calculation etc. and made payments for the same and took the delivery, when his employee Mr. V.P. Arunkumar had remained present who got the goods loaded in a Tempo arranged by Mr. Bhupendra Adatia. Mr. Gupta admitted the documents to be bogus, as also to have received some amount from Mr. Bhupendra Adatia. In his statement recorded, said Mr.

Bhupendra Adatia, admitted his acquaintance with Mr. D.D. Gupta, and also admitted to have handled four Ex-Bond Bills of Entry, which were filed on 'self' basis by said Mr. Gupta and to have taken them to the Assessment Group. He however stated that he had done so in his personal capacity and not as an official representative of the CHA firm, as those Bills of Entry were never handed over to the CHA firm. He further stated that he had handed over those Ex-Bond Bills of Entry to Mr.

Gupta and was in no way concerned with the clearance of the goods, and that it was only at the time when certain goods were put on auction sale by the Department and found those goods in the list of goods to be auctioned that he suspected the fraud committed by Mr. Gupta. He however admitted to have arranged for funds to pay the duty etc. on the offer made by Mr. Gupta to pay some commission, but stated that it was Mr. Gupta who took the delivery. Mr. Bhupendra however, admitted to have had some discussions with Mr Gupta in relation to the release of the consignment (details whereof are duly recorded in his statement).

In the process of investigation, statement of Mr V.P. Arunkumar was also recorded, who admitted to have attended the process of taking delivery of the goods, and to have got them loaded in a tempo arranged by Mr. Bhupendra.

2.2. On completion of the investigation, Show Cause Notice dt.

21.6.1991 was served, amongst others, on Mr D.D. Gupta and Mr.

Bhupendra Adatia, for the purpose of ordering confiscation of the goods vide provisions of Section 111 of the Customs Act, and for imposing personal penalty, vide Section 112 of the Act, on them.

2.3. The said Show Cause Notice was adjudicated upon, by the Collector of Customs (Judicial), who, vide his order No. S/10-33/DRI/BZU/91 dt.

8.1.1992 for the reasons recorded therein, dropped the proceedings, against all the noticees. In paras 53 and 54 of his order the said adjudicating authority however observed thus: 53. For filing fraudulent documents in the manner as has been done in this case, there is a clear criminal case against Mr. D.D. Gupta and Mr. B.B. Adatia which should be immediately reported to the Police authorities for taking action under I.P.C. 54. Secondly, on the basis of what has come on record the conduct of Mr. B.B. Adatia, partner of the CHA firm M/s Nilesh Shipping Agency appears to be highly mischievous and straightaway his CHA licence should be suspended. This may be immediately reported to AC(CHA) for appropriate action.

2.4. No appeal is reported to have been preferred against the said order, either by the department or by any of the noticees individually as also by the CHA firm.

The Collector of Customs, Bombay, in exercise of his powers under Regulation 21(2) of the CHA Regulations, vide his order dt. 14.2.1992 suspended the licence of the CHA firm, M/s Nilesh Shipping Agency, on the ground that regular enquiry against them was under contemplation.

4.1. Vide Notice dt. 8.5.1992, the Collector of Customs, in exercise of his powers under Regulation 23 of the CHA Regulations, called upon the CHA firm to show cause why the CHA licence should not be cancelled, levelling the charges which in brief, are: (1) the firm had attended the work relating to clearance of goods for a fictitious firm M/s Arvind Engineering Co. without proper authorisation and thus contravened Regulation 14(1) of the CHA Regulations.

(2) the firm acted in a way unbecoming of a CHA firm by providing assistance to one Mr. D.D. Gupta, for a monetary consideration though it was known that the firm M/s Arvind Engineering Co. was a fictitious firm and Mr. Gupta was not a Proprietor, and thereby contravened the provisions of Regulation 14(d) of the CHA Regulations.

(3) the firm gave advice to Mr. Gupta to create a fictitious firm and assisted him in filing three Ex-Bond Bills of Entry under misrepresentation of High Sea Purchase, and paid duty and other charges and thereby contravened the provisions of Regulation 14(e) of the CHA Regulations.

(e) unauthorisedly removed the goods and committed misconduct punishable under Regulation 21(1) of the CHA Regulations.

In the said notice, reference was also made to the proceedings initiated under the provisions of the Customs Act, 1962 where it was contended that all the acts alleged were the individual acts of Mr.

Bhupendra Adatia, but it was averred that said Mr. Bhupendra being the only working partner of the CHA firm, he had duminified high fiduciary position vested in him because of his being CHA licence holder, which tantamount to misconduct on his part.

4.2. Assistant Collector of Customs, Group 3, was appointed as Enquiry Officer.

4.3. The CHA firm, in reply to the said Show Cause Notice, pleaded that CHA M/s Nilesh Shipping Co. was a Registered partnership firm with Mr.

Bhupendra Adatia, as one of its partner. A plea was raised that the firm had neither filed the three Ex-Bond Bills of Entry nor were they ever handed over to them for processing and that no customer-agent relationship ever existed between the firm and M/s Arvind Engineering Co. or its alleged proprietor Mr. D.D. Gupta. It was emphasised that acts of rendering assistance to Mr. D.D. Gupta by Mr Bhupendra Adatia, in getting three Ex-Bond Bills of Entry assessed in the Appraising Group, arranging funds for payment of duty and deputing their employee to take delivery of goods, were all done by him in his individual capacity and the CHA firm was neither concerned nor derived any benefit therefrom.

4.4. The Enquiry Officer, vide his Report dt. 24.8.1992, observed that the only evidence available was the admissions made by Mr Bhupendra Adatia, and the statement against him given by Mr. D.D. Gupta. He however refrained from considering the statement of Mr. Gupta, as though summoned, Mr. Gupta did not appear to attend the enquiry proceedings, and as such there was no evidence, on record, to show that the CHA firm attended to the Bills of Entry, and confined himself to the admission of Mr. Bhupendra that he had only rendered assistance to Mr. Gupta in getting the Bills assessed early. As regards the amounts allegedly paid by the CHA firm, he held that the Bank Account showed that cash deposit and pay order obtained from the bank for payment of duty were of the same day or the next day and there was no evidence that the money came from the CHA firm. Referring to the statement of Mr. V.N. Arunkumar recorded at the Enquiry, denying his presence at the time of taking delivery, he held that there was no evidence of CHA firm having provided any transport. As regards recovery of goods from Bhupendra Adatia, he observed that the Recovery Panchnama was signed by Mr. Bhupendra in his individual capacity. The Enquiry Officer thus concluded that there was no contravention of any of the provisions of the CHA Regulations by the firm. At the same time, he also made the following observations: The acts of Mr. Bhupendra B. Adatia in attending to the work of (a) assessment of 3 Ex-Bond Bs/E in the Apprg. Group, (b) the arranging of funds for paying customs duty (c) providing transport facilities and deputation of an employee of his to take delivery of goods show that Mr. Bhupendra B. Adatia had taken more than usual interest in providing assistance in the clearance of the goods. Being a partner of a registered Customs House Agency, he should have been aware of the code of conduct under the provisions of CHA Licensing Regulation, 1984. He should have also seen that this unusual interest shown by him in extending assistance in clearance of goods would some day put his firm into the present difficulties.

In the opinion of the Enquiry Officer, some action could be taken against Mr. Bhupendra Adatia as the holder of Customs pass.

4.5. The Collector of Customs, as the competent authority, however, did not agree with the conclusions drawn by the Enquiry Officer and while forwarding the copy of the Report of the Enquiry Officer, he also served the CHA firm with a notice to show cause why he should not draw a different conclusion and cancel the licence.

4.6. The CHA firm in their reply dt. 28.12.1992, however, reiterated the stand that the major formalities were attended to by Mr. D.D. Gupta himself and that functions attributed to Mr. Bhupendra Adatia were in his individual capacity.

4.7. The Collector of Customs has however not accepted the conclusions drawn in the Report of the Enquiry Officer as also the plea of the CHA firm and has held that Mr. Bhupendra Adatia cannot disown the liability of the firm, as vide Section 26 of the Indian Partnership Act, 1932, the wrongful acts of the partner bind the firm. He has also observed that the partnership firm comprises of only two partners namely Mr.

Bhupendra and his wife, and Mr. Bhupendra is the only person qualified under the CHA Regulations, to be eligible to possess the CHA licence.

The Collector has then referred to the Judgment of the Supreme Court in C.K. Pradhan and Ors. v. Collector of Customs, Bombay has passed the impugned order.

5.1. Mr. Pochhkhanwala, the Ld. Advocate for the appellant, while not challenging the right of the Collector to differ from the finding given by the Enquiry Officer, has pleaded that the Show Cause Notice issued by the Collector after the Report from the Enquiry Officer, is a mere reiteration of the grounds specified in the first notice, and does not specify the grounds which prima facie, weighed with the Collector to differ from the findings of the Enquiry Authority. In his submission, thus, the second show cause notice is bad in law. He has also pleaded that the proceedings initiated under the provisions of the Customs Act, were against Mr. D.D. Gupta, and Mr. B.B. Adatia is their individual capacity and the CHA firm was never taken as involved and that the observations of the Collector (Judicial), recommending initiating proceedings against CHA firm were beyond due exercise of his powers.

Main thrust of the arguments of Mr. Pochhkanawala is on the point that M/s Nilesh Shipping Co., is a distinct and separate entity and any act done by Mr. Bhupendra Adatial (sic), in his individual capacity, could not affect the partnership firm. The Ld Advocate has more than once, reiterated that there is nothing on record to show that the CHA firm was involved. Challenging the applicability of the provision of Section 26 of the Indian Partnership Act, 1932 the Ld. Advocate has pleaded that the said provisions could apply only when the partner acts "during the ordinary course of business". On merits, the Ld. Advocate has submitted that with Mr. D.D. Gupta not examined as a witness, his statement recorded under the provisions of the Customs Act cannot be considered, and for that purposes, has referred to the decision of this Bench in Thakkar Shipping Agency v. Collector of Customs and has pleaded that with statement of Mr. D.D. Gupta being not available as evidence, and with no other evidence showing involvement of the firm; from what has been admitted by Mr. Bhupendra Adatia, involvement of the firm is not established, and the action of Mr. Bhupendra Adatia was purely in his individual capacity and that too by way of liaison between the officers and Mr. Gupta. As an alternative submission, the Id. Advocate has pleaded that the CHA firm was the only source of livelihood for the family, and now Mr. Bhupendra is also suffering from some serious ailment, and the family is facing severe financial constraints, and that with period of two years already over, the order of permanent cancellation of the licence be converted into cancellation for a specified period, and for that purpose two years period be considered as adequate.

5.2. Mr. K.M. Mondal, the Ld. SDR, while supporting the order, has pleaded that there is virtually no challenge to the alleged acts which tend to show the behaviour as unbecoming of a CHA firm, but the contention raised is only about those acts being the acts of Mr.

Bhupendra Adatia in his individual capacity, and has submitted that the partnership firm is, under the law, not conferred the status of a juristic person, and as such, the partner is an inseparable entity for the firm. Further, as is submitted by the Ld. SDR, the partnership comprises of Mr. Bhupendra and his wife, and it is only Mr. Bhupendra who has qualified himself under the CHA Regulation and it is not possible to draw any line to identify his activity as an individual and as a partner, and when the activity admitted to have been undertaken by him which is the subject matter here, is the same which a CHA firm is licensed to perform, provisions of Section 26 of the Partnership Act, 1932, would stand attracted. He has also pleaded that even otherwise, the fact that he has acted in the capacity as the partner of the firm is evident from the fact that the deposit of the money and withdrawal thereof for payment of duty etc. are from the Bank Account operated in the name of the firm. On merits, he referred to the evidence to show that even the admitted acts on the part of Mr. Bhupendra Adatia, were in contravention of the obligations imposed on the CHA, and if they are held to have been performed by or on behalf of the firm, they tantamount to contravention of the provisions of Regulation 14 of the CHA Regulations. The Ld. SDR has also reiterated the observations of the Supreme Court in Chandrakant Krishnarao Pradhan v. Collector which has been referred to by the 6. Considering the submissions made and going through the records made available, it is an undisputed position that CHA licence holder is a Registered Partnership firm, comprising of Mr. Bhupendra Adatia, and his wife, and there is no third partner. It is also not pleaded that the wife of Mr. Bhupendra is taking active part in their activity as a Customs House Agent. Mr. Bhupendra alone has qualified himself to hold the CHA licence, as per requirements laid down in the CHA Regulations, and he alone, is authorised to transact the business.

7. The licence so issued and authorisation so given, entitled Mr.

Bhupendra Adatia, to act as an agent for the importer and to carry out all such acts which an importer is otherwise, required to do it by himself, and this includes the work of presentation of Bills of Entry, getting the assessment done and getting the duty and other charges paid etc.

8. As extracted in the earlier part of this order, the Enquiry Officer has in his Report dt. 24.9.1992, concluded that Mr. Bhupendra Adatia had (1) got the Ex-Bond Bills of Entry assessed (2) arranged for the funds and (3) provided transport. There is also no challenge to the fact that this Mr. Bhupendra Adatia retrieved certain quantity of Ball Bearings which were got released under those Ex-Bond Bills of Entry. In the reply to the first Show Cause Notice under, the provisions of the CHA Regulations also, it is admitted that those Ex-Bond Bills of Entry were got assessed by Mr. Bhupendra, who, in his interrogation before the Enquiry Officer on 16.9.1992, not only admits to have so done, but has further stated that because there was some defect, he advised Mr.

Gupta to get the same rectified at the Bond Department. It is also admitted in the reply to the Show Cause Notice, as also in the interrogation before the Enquiry Officer, that Mr. Bhupendra introduced the prospective buyers to Mr. Gupta, and through them the amount for payment of duty and other charges was arranged and Mr. Bhupendra has admitted before the Enquiry Authority that the amount so gathered was deposited in the Bank Account of the CHA firm and was then withdrawn.

It is also admitted by Mr. Bhupendra before the Enquiry Officer that he had sent his employee Mr. P.V. Arunkumar, with Mr. Gupta to the CWC Warehouse, at the time of taking delivery and has assigned the reason therefor that he wanted to ensure that correct delivery was taken as the purchasers had advanced money at his instance.

9. When Mr. Desh Deepak Gupta, has not been examined as a witness in these proceedings and as is held by this Bench in Re : Thakkar Shipping Agency (supra), statement recorded under Section 108 of the Customs Act, of a person who is not examined as a witness in the proceedings under the CHA Regulations, cannot be taken into consideration, it is not open in the present appeal proceedings to look into the same, but even going by what has been admitted by Mr. Bhupendra Adatia himself, it is not possible to accept the plea that he merely acted as a liaison person. If he was only casually assisting Mr. Gupta, on casual acquaintance with him, he would have taken no interest, after he got the Ex-Bond Bills of Entry assessed. Here, however, as admitted by himself, he thereafter helped Mr. Gupta to find out buyers, raise funds from them, deposit the amount so raised in the Bank Account operated by him, depute his own employee at the time of taking delivery and the most important, it is Mr. Bhupendra who has retrieved major portion of the goods. A fake attempt is made by him to plead that he retrieved the goods with a view to assist the department, but his act of retrieving the goods clearly indicate that he was not only aware of how the disposal of the goods was made but even had some command over the same which enabled him to retrieve the same with ease. All this is not conducive to his plea that he merely extended a helping hand to Mr.

Gupta, limited to getting 3 Ex-Bond Bills of Entry assessed. On the contrary, this establishes his complete involvement. Further having got the three Ex-Bond Bills of Entry assessed, Mr. Bhupendra must have known that the assessment was on the goods declared in bushes, and what he has retrieved are the Ball Bearings, and it would be beyond a rational reasoning that Mr. Bhupendra was ignorant of all these facts, particularly when he admits to have procured the customers/purchasers for the said goods. Thus even going by what Mr. Bhupendra himself has admitted, it is clear that he had completely involved himself in the said transaction, if not by putting Mr. Gupta as the front, by fully associating himself in the fraud committed.

10. The thrust of the contentions raised before the lower authorities as also here, is that all these acts were performed by said Mr.

Bhupendra Adatia in his personal capacity, and the question that obviously crops up is whether it is possible to demarcate between the acts done by Mr. Bhupendra in his alleged individual capacity and as a partner of the firm.

11. The firm comprises of only two partners, namely Mr. Bhupendra Adatia and his wife Mrs. Hansa Adatia, and it is on their own admission, as is reflected from the pleadings and particularly the statement of dates and events submitted by the appellants at the commencement of hearing of the appeal, that Mrs. Hansa Adatia is merely a sleeping partner. Thus Mr. Bhupendra Adatia is the only working partner of the firm. He is the only person from amongst the partners of the firm who is qualified under the CHA Regulations, to transact the work at the Custom House for and on behalf of the firm, and it is only he who holds the pass. As regards the subject transaction also, he has utilised the bank account of the firm and has further utilised the services of the firm's employee Mr. V.P. Arunkumar. It also cannot be overlooked that it was only by virtue of his having held the CHA pass that he had an access to various departments in the Custom House, as otherwise, being not an importer himself, he would have no locus standi. More significantly, even as on today, it is only Mr. Bhupendra who has continued to identify himself with the firm, by responding to the Show Cause Notice, issued to the CHA firm under the provisions of CHA Regulations, and has participated in the proceedings before the Enquiry Officer and the Collector as the representative of the firm, and CA-3 form submitted by the appellants for the purpose of present appeal, as also verification below the same, bear the signatures of only Mr. Bhupendra Adatia. No evidence, is brought, even not in the form of an affidavit of the second partner namely Mrs Hansa Adatia, to the effect that she has ever participated in the working of the CHA firm, or even now intends to alter her status from the one of a sleeping partner to an active partner. The circumstances thus, clearly indicate that the working at the CHA firm is virtually a one man show of Mr. Bhupendra Adatia, and it is not possible to accept the plea that he was, for the purpose of subject transaction, working in his individual capacity distinct from his capacity as a partner of the firm. Drawing of a demarcating line is practically impossible. There is also no declaration made by the other partner at any stage till this day, that Mr. Bhupendra had no authority to transact the subject transaction on behalf of the firm, and plea that he acted in his individual capacity also has come only from Mr. Bhupendra himself and none else.

12. Further, there is no challenge to the fact that Mr. Bhupendra is a partner in the CHA firm, and CHA firm is licensed to transact business of the type undertaken by Mr. Bhupendra in the subject incident.

Section 26 of the Indian Partnership Act, 1932, provides for the liability of the firm for the wrongful acts of the partner, done in the ordinary course of business of the firm. The provisions of the said section are based on the principle of partnership liability as also liability of the principal for the wrongful act of his agent. Under the Partnership Act each partner is an agent for the other partners and the firm constituted. On applicability of the said provisions, the firm remains liable for the acts of the partner if the acts fall within the scope of the authority of the partner to do so by legitimate means and that the partner had the general authority to do the same. The said provision would also cover the cases where the acts so done by the partner were by wrongful or illegal means. The case law on the interpretation of this section, also lays down that even the acts of tort committed by the partner in the course of business, which he was authorised to do as a partner, on behalf of the firm; would render the firm liable for the same.

13. No further deliberation appears necessary to hold that all acts of Mr. Bhupendra, which even otherwise cannot be segregated from his acts as the managing partner of the firm, would even by virtue of the provisions of Section 26 of the Indian Partnership Act, render the firm liable for the same. The submission of the Learned Advocate that the acts of Mr. Bhupendra could not be taken as those performed during the ordinary course of business of the firm cannot be accepted.

14. Mr. Bhupendra Adatia has undisputedly attended to the works of getting the three Ex-Bond Bills of Entry assessed, and as such undertaken the work of CHA without obtaining proper authorisation, and has aided, abetted and participated in a way unbecoming of a Custom House Agent, and hence the findings arrived at by the Collector of Customs in exercise of his powers under Section 23(7) of the CHA Regulations' cannot be held to have been not correct or that the findings arrived at by him are not sustainable.

15. Before parting it may also be observed that a plea was raised about not serving of the notice to Show Cause to the firm. That was however in relation to the Show Cause Notice in relation to the proceedings under the Customs Act. So far as the proceedings under the CHA Regulations are concerned, and in relation to which the present set of proceedings have been initiated, the Show Cause Notice is duly served on the appellant firm, and as such, the validity or otherwise 'of the notice for proceedings under the Customs Act, assume little significance. For the purpose of the present proceedings' the conclusions are based on what has been admitted by Mr. Bhupendra Adatia, in these very proceedings and partly on some observations made by the adjudicating authority in the other proceedings, against which even Mr. Bhupendra Adatia has not chosen to prefer any appeal. Even otherwise, the notice in those proceedings appear to have been served on Mr. Bhupendra Adatia as the partner of the CHA firm and undisputedly, he is the only working partner, with other partner being only a sleeping partner and the notice to the sole working partner could be taken as the notice to the firm but assuming that to be not so, the said Show Cause Notice has no direct bearing on the present set of proceedings, and hence the said aspect does not call for any decision, and the conclusion drawn hereinabove, could not in any way stand altered or affected. The judicial pronouncements referred to by the Id. Advocate are therefore not considered.

16. Under the circumstances, the order cancelling the licence appears to be just and proper and stands confirmed.

17. By way of an alternative plea, it is submitted that the order of cancellation of a licence permanently be substituted by an order cancelling it for a specified period. It is also pleaded that licence has already stood cancelled for the last two years, and the said period be considered as adequate. It is orally pleaded that Mr. Bhupendra Adatia is suffering from a very serious type of ailment which has even endangered his survival. It could have been possible to adopt some humanitarian approach in the matter, if Mr. Bhupendra was one amongst many partners and the other partners also were qualified for transacting business of the firm. Here, as is observed earlier, it is only a one man show of Mr. Bhupendra, and he has been even otherwise held as disqualified to hold the Customs Pass and the pass is ordered to be withdrawn and no appeal is preferred by Mr. Bhupendra in his individual capacity so far as that part of the order is concerned. Thus Mr. Bhupendra Adatia does not now remain qualified to transact any business and it was only on his qualifying to act as CHA, that the firm was granted the licence. Under these circumstances, with whatever sympathy that may be attempted to be generated, it is not possible to concede to the request made.