1 IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORDINARY ORDINARY ORIGINAL ORIGINAL ORIGINAL CIVIL JURISDICTION CIVIL JURISDICTION CIVIL JURISDICTION CUSTOMS CUSTOMS CUSTOMS APPEAL APPEAL APPEAL NO.90 OF 2007 NO.90 OF 2007 NO.90 OF 2007 The The The Commissioner Commissioner Commissioner of Customs (Gen). of Customs (Gen). of Customs (Gen). Appellant Appellant Appellant Mumbai-I Mumbai-I Mumbai-I vs vs vs M/s M/s M/s P.C.India P.C.India P.C.India Shipping Agency.. Respondent Shipping Agency.. Respondent Shipping Agency.. Respondent Mr.K.R.Choudhari Mr.K.R.Choudhari Mr.K.R.Choudhari with with with Mr.Anurag Gokhale and Mr.Anurag Gokhale and Mr.Anurag Gokhale and Mr.H.P.Chaturvedi Mr.H.P.Chaturvedi Mr.H.P.Chaturvedi for Appellant for Appellant for Appellant Mr.R.A.Dada,Sr.Counsel Mr.R.A.Dada,Sr.Counsel Mr.R.A.Dada,Sr.Counsel with with with Mr.S.P.Bharati Mr.S.P.Bharati Mr.S.P.Bharati for for for Respondents Respondents Respondents CORAM CORAM CORAM : : : F.I.REBELLO AND F.I.REBELLO AND F.I.REBELLO AND R.S.MOHITE, R.S.MOHITE, R.S.MOHITE, JJ JJ JJ DATED DATED DATED : : : 10th January, 2008 10th January, 2008 10th January, 2008 P.C. P.C. P.C. 1.1.1. The The The revenue has preferred this appeal on revenue has preferred this appeal on revenue has preferred this appeal on the the the following following following questions of law : questions of law : questions of law : (A) (A) (A) Whether on the true and proper Whether on the true and proper Whether on the true and proper interpretation interpretation interpretation of the Regulation 20 (2) of of the Regulation 20 (2) of of the Regulation 20 (2) of CHALR, CHALR, CHALR, 2004 the Commissioner of Customs is 2004 the Commissioner of Customs is 2004 the Commissioner of Customs is empowered empowered empowered to suspend the licence of Custom to suspend the licence of Custom to suspend the licence of Custom House House House Agent where an inquiry against agent Agent where an inquiry against agent Agent where an inquiry against agent isisis pending or contemplated without any pending or contemplated without any pending or contemplated without any notice notice notice to the CHA ? to the CHA ? to the CHA ? (B) (B) (B) Whether the Hon’ble CESTAT was justified Whether the Hon’ble CESTAT was justified Whether the Hon’ble CESTAT was justified inin in applying applying applying the Regulation 22 of CHALR, 2004 the Regulation 22 of CHALR, 2004 the Regulation 22 of CHALR, 2004 toto to the the the facts of the present case whereas the facts of the present case whereas the facts of the present case whereas the present present present case is under Regulation 20 (2) of case is under Regulation 20 (2) of case is under Regulation 20 (2) of CHALR, CHALR, CHALR, 2004 where the provisions are 2004 where the provisions are 2004 where the provisions are different different different ? ? ? 2.2.2. It may be possible to find fault with the order It may be possible to find fault with the order It may be possible to find fault with the order of of of the tribunal in as much as Regulation 20 (20) 2 the tribunal in as much as Regulation 20 (20) 2 the tribunal in as much as Regulation 20 (20) 2 has has has not been considred. The question however, is not been considred. The question however, is not been considred. The question however, is whether whether whether on the material before us, it would be a on the material before us, it would be a on the material before us, it would be a fit fit fit case to interfere with the ultimate conclusion case to interfere with the ultimate conclusion case to interfere with the ultimate conclusion arrived arrived arrived at by the tribunal. The emergent power to at by the tribunal. The emergent power to at by the tribunal. The emergent power to 2 suspend suspend suspend pending pending pending investigation cannot be used in the investigation cannot be used in the investigation cannot be used in the ordinary ordinary ordinary course. That power has to be exercised course. That power has to be exercised course. That power has to be exercised carefully carefully carefully and in a case of emegency ; when there and in a case of emegency ; when there and in a case of emegency ; when there isisis a need to suspend the licence as otherwise there a need to suspend the licence as otherwise there a need to suspend the licence as otherwise there isisis likelyhood likelyhood likelyhood of mischief and/or loss to revenue or of mischief and/or loss to revenue or of mischief and/or loss to revenue or tampering tampering tampering with evidence or the like. In the order with evidence or the like. In the order with evidence or the like. In the order of of of suspension, the only reason given is as under : suspension, the only reason given is as under : suspension, the only reason given is as under : : " M/s P.C India Shipping Agency CHA M/s P.C India Shipping Agency CHA M/s P.C India Shipping Agency CHA No.11/1150 No.11/1150 No.11/1150 (PAN No.AADFP5470C) in (PAN No.AADFP5470C) in (PAN No.AADFP5470C) in transacting transacting transacting business business business in Customs zone pending in Customs zone pending in Customs zone pending such such such inquiry is considered prejudicial to inquiry is considered prejudicial to inquiry is considered prejudicial to the the the said inquiry the interest of revenue and said inquiry the interest of revenue and said inquiry the interest of revenue and immediate immediate immediate action is warranted to prevent action is warranted to prevent action is warranted to prevent further further further misuse misuse misuse of the CHA licence. " of the CHA licence. " of the CHA licence. " 3.3.3. This This This order was passed on 12th March, 2007. Even order was passed on 12th March, 2007. Even order was passed on 12th March, 2007. Even ififif we were to consider to direct the respondents we were to consider to direct the respondents we were to consider to direct the respondents herein herein herein to make a representation against the order to make a representation against the order to make a representation against the order of of of suspension, there is nothing in the order by suspension, there is nothing in the order by suspension, there is nothing in the order by which which which the appellant would know the material which the appellant would know the material which the appellant would know the material which was was was used against him or the reasons why the order used against him or the reasons why the order used against him or the reasons why the order of of of suspension was passed. In these circumstances, suspension was passed. In these circumstances, suspension was passed. In these circumstances, that that that would be a idle formality. Even otherwise in would be a idle formality. Even otherwise in would be a idle formality. Even otherwise in para para para 1 of the order of suspension, the allegation 1 of the order of suspension, the allegation 1 of the order of suspension, the allegation isisis that the CHA allowed misuse of their CHA that the CHA allowed misuse of their CHA that the CHA allowed misuse of their CHA licence. licence. licence. On behalf of the respondents, learned On behalf of the respondents, learned On behalf of the respondents, learned counsel counsel counsel has drawn our attention to para 20 of the has drawn our attention to para 20 of the has drawn our attention to para 20 of the judgment judgment judgment of the Supreme Court in Liberty Oil Mills of the Supreme Court in Liberty Oil Mills of the Supreme Court in Liberty Oil Mills vs vs vs Union of India, AIR 1984 SUPREME COURT 1271. Union of India, AIR 1984 SUPREME COURT 1271. Union of India, AIR 1984 SUPREME COURT 1271. The The The relevant portion of which reads as under : relevant portion of which reads as under : relevant portion of which reads as under : " We have referred to these four cases only We have referred to these four cases only We have referred to these four cases only toto to illustrate how ex parte interim orders illustrate how ex parte interim orders illustrate how ex parte interim orders 3 may may may be made pending a final adjudication. be made pending a final adjudication. be made pending a final adjudication. We, We, We, however take care to say that we do not however take care to say that we do not however take care to say that we do not mean mean mean to suggest that natural justice is not to suggest that natural justice is not to suggest that natural justice is not attracted attracted attracted when orders of suspension or like when orders of suspension or like when orders of suspension or like orders orders orders of an interim nature are made. Some of an interim nature are made. Some of an interim nature are made. Some orders orders orders of that nature intended to prevent of that nature intended to prevent of that nature intended to prevent further further further mischief of one kind may themselves mischief of one kind may themselves mischief of one kind may themselves be be be productive productive productive of greater mischief of another of greater mischief of another of greater mischief of another kind. kind. kind. An interim order of stay or An interim order of stay or An interim order of stay or suspension suspension suspension which has the effect of which has the effect of which has the effect of preventing preventing preventing a a a person however, temporarily say person however, temporarily say person however, temporarily say from from from pursing his profession or line of pursing his profession or line of pursing his profession or line of business business business may have substantial, serious and may have substantial, serious and may have substantial, serious and even even even disastrous consequences to him and may disastrous consequences to him and may disastrous consequences to him and may expose expose expose him to grave risk and hazard. him to grave risk and hazard. him to grave risk and hazard. Therefore, Therefore, Therefore, we say that there must be we say that there must be we say that there must be observed observed observed some modicum of residual, core some modicum of residual, core some modicum of residual, core natural natural natural justice, sufficient to enable the justice, sufficient to enable the justice, sufficient to enable the affected affected affected person to make an adequate person to make an adequate person to make an adequate representation. representation. representation. " " " 4.4.4. We are clearly therefore, of the opinion that We are clearly therefore, of the opinion that We are clearly therefore, of the opinion that even even even though the tribunal may not have addressed though the tribunal may not have addressed though the tribunal may not have addressed itself itself itself to the correct question nonetheless we to the correct question nonetheless we to the correct question nonetheless we cannot cannot cannot find fault with the ultimate conclusions find fault with the ultimate conclusions find fault with the ultimate conclusions arrived arrived arrived at by the tribunal. In the light of the at by the tribunal. In the light of the at by the tribunal. In the light of the above, above, above, there is no merit in this appeal which is there is no merit in this appeal which is there is no merit in this appeal which is accordingly accordingly accordingly dismissed. dismissed. dismissed. (F.I.Rebello, (F.I.Rebello, (F.I.Rebello, J) J) J) (R.S.Mohite, (R.S.Mohite, (R.S.Mohite, J) J) J) 4