[Order per : V.K. Agrawal, Member (T)]. - M/s. Falcon Air Cargo & Travels P. Ltd. have filed this appeal being aggrieved with the Adjudication Order No. 35/Policy/S/KAK/2000, dated 13-7-2000 under which the Commissioner of Customs has revoked their Customs House Agent Licence for not exercising proper supervision over their employee, for sub-letting their licence to ‘sub-agent’ and for not taking due care concerning the correct value which resulted in excess claim for drawback.

2. Shri Ashok Mehta, learned Advocate, submitted that the Delhi High Court has remanded the matter vide Order dated 13-8-2001 in CWP 635 of 2001 [ (Del.)] filed by the Appellants as the Tribunal had not dealt with their contentions and for considering all relevant aspects and for drawing a balance sheet of gravity of infraction and mitigating circumstances. He, further, submitted that the first show cause notice dated 8-11-1995 was issued to them for revoking their CHA licence on the allegation that one of their employee Shri Kanshi Ram Rana appeared for examination on 8-9-1995 on the strength of a photocopy of his Identity Card No. 22/91 after forging the validity on the photocopy from 1/95 to 1/96; that the Inquiry Officer, appointed under Regulation 23(1) of Customs House Agent Licence Regulations, 1984 (CHALR), in his Report dated 6-7-1998, found that the charges leveled against the Appellants of not complying with the mandatory provisions of Regulation 20(7) and committing grave mis-conduct in terms of Regulation 21(1)(c) were not proved. The learned Advocate also mentioned that a second show-cause notice dated 23-8-1999 was issued to the Appellants for giving business to an un-authorised Party, namely, M/s. Pinks Cargo Agency, in violation of Regulation 13 of CHALR, 1984 and connived with them to append false declarations so as to obtain drawback amounts far in excess of the entitled amount; that the Inquiry Officer, in his Report dated 3-5-2000, came to the conclusion that they had given the business to M/s. Pinks Cargo Agency but it can not be said with certainty that they connived with them to append false declaration as alleged, CHA cannot be squarely blamed as the Exporter stated that all negotiations in respect of the consignment were made with Shri Vinod Chopra of M/s. Pinks Air Cargo Agency only; CHA was at fault under Regulation 14(b) of CHALR as neither Vinod Chopra nor Navneet Arora of Pinks Cargo were duly approved persons/agents authorized to transact business and that the charge that CHA under Regulation 14(e) had failed to exercise due diligence to ascertain the correctness of information which he imparts to his client with reference to the clearance of the Cargo can not be held true as none of the persons had made any allegations against them and all documents were prepared by the representatives of Pinks Cargo Agency and the Appellants filed the same with the Customs in the normal course of their business as clearing agent. The learned Advocate contended that the Adjudicating Authority had not given any reasons for not accepting the first report of the inquiry officer in which they had been exonerated completely; that in the second report also, inquiry officer had substantially exonerated the Appellants of the charges made in show cause notice; that Kanshi Ram Rana had stated in his statement that alleged change of the date in the photocopy of his identity card was done by him on his own and the Appellants were not aware of the same; that they had not given any business to Pinks Cargo Agency; that in fact M/s. Pinks Cargo Agency only brought business to them; that they were not aware that the goods sought to be exported were over invoiced as the goods came to them in packed condition with relevant documents.

3. He finally submitted that the Appellants do not have any other source of income and they are without any means of livelihood for the last 2 years and this punishment is more than enough for any negligence, if any, on their part. He relied upon the decision in the case of C.J. Joshi & Sons v. CCE, Kandla, (T) wherein it was held that “revocation of a licence is a grave punishment, as it deprives the person concerned of the means of livelihood for the rest of his lifetime”. In the said case the Tribunal, having regard to the effect of involvement of the Appellant and absence of mala fide against him and holding that “while action against him was called for”, held that “it would not justify total revocation of the licence. The licence was suspended in February, 1995 and the appellant was without a licence for three years. This, we feel, is sufficient punishment to the appellant”. Reliance was also placed on the following decisions :-

(i)      Shiv International v. Commisioner of Customs, (T)

(ii)     Lohia Travel & Cargo v. Commissioner of Customs, (T)

(iii)    Damani Bros. v. C.C., Kandla,

He also mentioned that the Appellants have been sufficiently punished as they are out of work for last two years; that in addition they had been imposed with a penalty of Rs. 35,000/- for not assisting the Exporters in preparing correct document.

4. Countering the arguments, Shri Jagdish Singh, learned J.D.R., reiterated the findings of the Commissioner as contained in the impugned Order and emphasized that the Inquiry Officer in the second case gave his Report that the export documents were prepared by Pinks Cargo Agency and the Appellants had signed and filed the same with the Customs; that they had in fact given business to Pinks Cargo Agency and as such violated the provisions of CHALR; that since the documents were signed by the Appellants, they were squarely responsible for the correctness of the information as required under provision of Regulation 14(e) of CHALR for all particulars including the value of the consignment; that in the first case the Appellant cannot absolve themselves even if they did not connive with Shri Rana; that under Regulation 20(7), the CHA shall exercise such supervision as may be necessary to ensure proper conduct of their employee in the transaction of business as agent and CHA is held responsible for all acts or omission of his employees.

5. We have considered the submissions of both the sides. We observe that the Inquiry Officer in respect of first show cause notice regarding falsifying the photocopy of Identity Card by one of their employee had exonerated the appellants. The Commissioner, in the impugned Order, has held them responsible for the conduct of employee. In respect of second show cause notice, the Second Inquiry Officer has concluded that the Appellants did give the business to M/s. Pinks Cargo Agency. However, he had also opined that “it cannot be said with certainty that they connived with them to append false declaration as alleged. The documents bear the signatures of Exporter as well and the fact that the beneficiary of the drawback amount were to be the Exporters M/s. Ski Air Exports Pvt. Ltd.” The Adjudicating Authority has found the Appellant liable as the Shipping bills had been signed by the Appellant. We also observe that the Inquiry Officer had also suggested as under :

“While adjudicating, the adjudicating authority may please take into consideration the amount of penalty imposed on the Exporter, representative of M/s. Pinks Cargo Agency and the CHA by the Commissioner of Customs ICD since the same do reflect the complicity and the extent of abatement and connivance.”

6. The said Order No. 9/98, dated 29-4-1998 passed by the Commissioner of Customs ICD, New Delhi imposing penalty on the Appellants herein. Exporter and M/s. Pinks Cargo Agency came up for consideration of the Tribunal and vide Order No. A/500-502/99, dated 28-5-1999, the Tribunal has upheld the penalty of Rs. 35,000/- against the Appellants, penalty of Rs. 2.5 lakhs on the Exporters. While confirming the penalty against the Appellants herein the Tribunal observed as under :-

“In so far as imposition of penalty on M/s. Falcon Air Cargo & Travels Pvt. Ltd. is concerned, we note that they are Custom House Clearing Agents, they were well conversant with the export and import documents, they have not placed any evidence on record to prove that they had taken all the precautions or they were in possession of the written instructions of the exporter for preparation of shipping bills and other export documents. We have perused the findings of the ld. Commissioner of Customs on their role. Having regard to the fact that the Customs Agent is required to assist the customs authorities and the exporters in preparing correct documents based on the evidence. We note that this requirement has note been complied with by the Customs House Agent and therefore, we do not see any reason to interfere either with the imposition of the penalty or the quantum of the penalty. The imposition of penalty is sustainable in law and the quantum thereof is reasonable.”

7. This Tribunal has found the Appellants liable for imposition of Penalty for their role in respect of export (subject matter of second show cause notice). It is now to be considered by us whether this warrants the action of revocation of their CHA licence. The Delhi High Court, while remanding the matter, had expressed the view that “when revocation is directed it has to be only in cases where infraction is of a very serious nature warranting exemplary action on the part of the authorities, otherwise two types of actions (suspension and revocation) would not have been provided for.........the authorities while dealing with the consequences of any action which may give rise to action for suspension, revocation or non-renewal have to keep several aspects in mind. Primarily, the effect of the action vis-a-vis right to carry on trade or profession in the background of Article 19(1)(g) of the Constitution has to be noted. It has also to be borne in mind that the proportionality question is of great significance as action is under a fiscal statute and may ultimately lead to a civil death”. Similar views were echoed by the Tribunal in the case of Lohia Travel & Cargo, supra, wherein the Tribunal held that “revocation of licence...... is a grave punishment as it deprives permanently a person of the means of livelihood”. In the said case where the allegations were short shipment with the connivance of CHA’s employee and export of hasish by the employee, the Tribunal held that no case for revocation of CHA’s licence had been made as the CHA was not aware of the fraud committed by their employees. The Tribunal also took into consideration the fact that “the CHA has already suffered hardship, for being out of business during the period of suspension of the licence....... and thereafter during the refusal of temporary renewal of licence .... and since August, 2000 when the Adjudicating Authority revoked their licence”. In the present matter also, the licence was not functional after 13-1-2000, as observed by the High Court, and it was revoked by the impugned Order dated 13-7-2000. The charges against the Appellants, in our view are not so grave that a grave punishment of revocation of licence is called for. It is well settled law that punishment should be commensurate with the offence. In the facts and circumstances of the present matter and particularly in view of the findings of two Inquiry Officers, we feel that it is not a fit case for revoking the licence and depriving of the Appellants of their means of livelihood. The punishment already suffered by them is sufficient. We, therefore, set aside the impugned Order and allow the appeal.