Bombay high court holds customs commissioner can disagree with inquiry report finding
July, 25th 2012
A full bench of the Bombay high court in a ruling that spells out and clarifies the supremacy of Customs Commissioner over his subordinates, has held that the "commissioner is empowered to disagree with the findings recorded in the inquiry report and pass such orders as he deems Fit."
The HC three-judge bench held that if the Customs House agents (CHA) is aggrieved by an order of the Commissioner, he is entitled to challenge it by filing an appeal.
The ruling was given by a bench of Justices M.S. Sanklecha, K.K. Tated, and J.P. Devadhar on July 19 as the matter was referred to the three judges after two separate two-judge benches differed in their views on whether the commissioner could disagree with the order of a deputy or assistant commissioner.
The matter was referred to the larger bench in September 2011 to decide two questions of law. One was whether under the provisions of Regulation 22 of the Custom House Agents Licensing Regulations, 2004, is the Commissioner of Customs entitled to differ with the findings arrived at by the Deputy Commissioner of Customs or even an assistant Commissioner of Customs in their report and whether it was correct proposition of law that under Regulation 22 no power has been vested with the Commissioner of Customs to disagree with the report of the Inquiry Officer ?
The matter before the court was of one CHA, M/S Delta Logistics whose licence was suspended by the Customs Commissioner in December 2008. In October 2009, after a chargesheet was filed an assistant commissioner was appointed to inquire into the charges. In his report submitted to the commissioner in December 2010, more than a year later, none of the charges levelled against the petitioner were proved beyond doubt. The commissioner heard Delta Logistics and in July 2011 revoked its licence . Aggrieved Delta Logistics moved the HC againstthe revocation on the grounds that the commissioner had no power to disagree with the iquiry officer's report.
The CHA basically argued that it was required under law to challenge only those findings that were against it in the inquiry report not those in favour and that there was no rule to provide the commissioner powers to overrule the inquiry report.
But the customs department contended that an appeal in another matter is pending before the Supreme Court in a similar case. But he also argued that the inquiry officer is subordinate to the Commissioner and thus the Commissioner cannot be bound by the report of the inquiry officer.
The three-judge bench said after having "carefully considered the rival submissions, there can be no dispute that the rank of the Commissioner of
Customs is higher than the rank of Assistant Commissioner of Customs or deputy Commissioner of Customs. Besides he is empowered to issue show-cause notice to the CHA to suspend or revoke the Is also empowered to "pass such orders as he deems fit' after considering the inquiry report and the representation of the CHA, if any. The court held that, "therefore, whether the inquiry report is
in favour of the CHA or not, it is the Commissioner who has to pass the final order as he deems fit on the show-cause notice issued by the Commissioner." The commissioner has the discretion whether or not to agree with the report, the HC clarified. The judges did not agree with submissions of the CHA that it can only contest orders that are against it. The HC held that regulation 22(6) requires the CHA to make representation against the inquiry report irrespective of the fact as to whether the report is in favour of the CHA or not.