Misc. Appeal No.577 of 2009 ****** Against the order dated 2.3.2009, passed by the Customs, Excise and Service Tax Appellate Tribunal, Eastern Zonal Bench, Kolkata in Appeal No. CDM-15/05. ******** Sujit Kumar Singh, son of Shri Bodh Narayan Singh, residing at Ward No. 3, Lohiya Nagar, Supaul, P.S.- Supaul, District-Supaul. .........Appellant Versus 1. The Union of India through its Secretary, Ministry of Finance, New Delhi. 2. The Commissioner of Customs (Preventive), Bihar, Patna. .......Respondents ******* For the Appellant: Mr. Chakradhari Sharan Singh Advocate. For the Respondents: Ms. Archana Meenakshi, Advocate ******* P R E S E N T THE HON’BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON’BLE MR. JUSTICE AHSANUDDIN AMANULLAH ******* S.K. Katriar, J. This appeal under Section 130 of the Customs Act, 1962,(hereinafter referred to as ‘the Act’) has been preferred by, and raises a grievance with respect to the order dated 03.03.2009 (Annexure-6), passed by the learned Customs, Excise and Service Tax Appellate Tribunal, Kolkata, in Appeal No. CDM-15 of 2005, whereby the appeal preferred by the present appellant under the provisions of Section 129-A of the Act, has been rejected on the ground that it is not maintainable at the instance of an ex- 2 employee of the Customs House Agent. 2. A brief statement of facts essential for the disposal of this appeal may be indicated. M/s. Mishra & Mishra (Agencies) Enterprises, was designated as Customs House Agent, under the provisions of Customs House Agent’s Licensing Regulations, 1984 (hereinafter referred to as ‘the Regulations’). The appellant was, at the relevant point of time, an employee of M/s Mishra & Mishra and was posted at Indo-Nepal Border at Raxaul, to act as its agent. The respondent authorities had recognized this position and had granted to him provisional identity-cum-authority card in terms of Regulation-20 (Anexure-1 series), whereunder he was authorized to act on behalf of M/s Mishra & Mishra and deal with the authorities under the Act. The appellant had submitted this complaint dated 24.11.2003 to respondent no.2 complaining against the misbehavior and illegal activities of the functionaries of the department at Raxaul. The department took notice of the allegations and immediately transferred them to different places in December 2003, to ensure an independent enquiry free from their influence at Raxaul. 2.1) This was followed by the joint show- cause notice dated 28.01.2004 (Annexure-3), from 3 respondent no. 2 to M/s Mishra & Mishra, D.P. Mishra, a partner of M/s. Mishra and Mishra (Agencies), and the appellant which, inter alia, alleged that the truck carrying the consignment of M/s Mishra & Mishra had two cartons in excess. In other words, the appellant, being the agent at the spot, had declared that the truck was carrying 228 cartons, whereas it was really carrying 230 cartons, to his full knowledge. The second part of the allegation was that the appellant had been misbehaving with the auctioneer of the department and had been sending complaints levelling false allegations against them. The appellant had shown cause by his communication dated 19.08.2004 (Annexure-4). It further appears from the order of respondent no.2 that the firm had also submitted a detailed and exhaustive reply on 21.5.2004. 2.2) On a consideration of the materials on record, respondent no. 2 passed order dated 07.09.2004, wherein it has, in substance been stated that M/s Mishra & Mishra were not responsible for the excess carriage of the cartoons, and was the individual acts of the appellant to his full knowledge. He also noticed the foul atmosphere created by the appellant and false complaints sent by him against the 4 functionaries at Raxaul. He concluded by directing that the provisional identity-cum-authority card issued to the appellant stood withdrawn, and he was prohibited from acting as such throughout the territory of Bihar and Jharkhand. 3. Aggrieved by this order, the appellant preferred appeal before the Tribunal, which has been rejected by the impugned order, on the ground that in view of Regulation-20 of the Regulations, such an appeal at the instance of the identity- cum-authority card holder is not maintainable. There is no material on record to show that the other two noticees had preferred appeal. 3.1) It is relevant to state that, after respondent no. 2 had passed the order dated 07.09.2004, the firm had dispensed with the services of the appellant by the order dated 10.09.2004 (Annexure-A to the counter affidavit of respondent nos.1 and 2). 4. The following substantial questions of law have been formulated for our consideration: (i) For that the appellant Tribunal failed to appreciate the fact that the appellant had preferred the appeal under section 129A of the Customs Act 1962 was passed by the Commissioner, Customs (Preventive), Patna as an adjudicating authority and as such the appeal 5 preferred by the appellant before the Tribunal was maintainable (ii) For that the Tribunal failed to appreciate that the adjudicating authority means any authority competent to pass any order or decision under the Customs Act, 1962, and the Commissioner passed the order under Regulations framed under the Customs Act. (iii) For that the learned Tribunal ought to have held that the Commissioner, Customs (Preventive) Patna, did not have competence to deal with an employee of Customs House Agent as the action under the Regulations concerned could be taken by the adjudicating authority against Customs House Agent and not against the employee of the Customs House Agent. (iv) For that the Tribunal ought to have considered that there was flagrant violation of the principle of natural justice inasmuch as the appellant was not given any opportunity to cross- examine the persons examined in support of the ground forming the basis of the proceedings. (v) For that the Tribunal ought to have considered that Regulation 21 of the 1984 Regulations is subject to the provisions of Regulation 23 which provides a detailed self contained procedure for suspension/revocation of licence under Regulation 21. Regulation 23 contemplates an inquiry by the Commissioner/Deputy Commissioner of 6 Customs after issuance of notice and submission of written statement of defence before him who might proceed for inquiring into such of the grounds which were not admitted. This mandatory provision was not followed and further that this procedure deals with cancellation/ revocation of licence of Customs House Agent and does not deal with its employee. (vi) For that the Tribunal has failed to discharge its duties as an appellate authority. (vii) For that the order impugned are otherwise bad in law as well as on facts. 5. While assailing the validity of the impugned order, learned counsel for the appellant submits that the appeal at the instance of the identity-card holder is maintainable, otherwise he would be rendered remediless. He also submits that two cartons in excess were really short-fall of a previous consignment, and he was able to clearly explain it which has been overlooked by respondent no.2. He has also taken us through the entire materials on record for consideration of the issues on merits. 6. The Learned standing counsel had supported the impugned order. She has also assisted us on the merits of the matter. She 7 further submits that the firm has realized the appellant’s mistake and has, by its order dated 10.09.2004, dispensed with his services. She submits that the appellant has not been rendered remediless, his cause has been considered in detail by respondent no.2, and it is open to this Court to examine the entire matter on merits to consider the grievances of the appellant. She lastly submits that the materials on record clearly indicate that M/s Mishra & Mishra completely disowned the appellant, being his individual act. 7. We have perused the material on record and considered the submissions of the learned counsel for the parties. We do not wish to examine the question of maintainability of this appeal which may await the decision of this Court in a more appropriate case. In order to take care of the grievances of the appellant that he has been rendered remediless, we have examined the matter on merits including issues of facts. It is quite clear that detailed show-cause notice had been issued to the appellant, the firm and one more partner. The entire materials were exhaustively considered by respondent no. 2, and a reasoned order had been passed. Secondly, the appellant had 8 declared that the truck was carrying only 228 consignments in a situation it was really carrying 230 cartons, two of which belonged to somebody else. In other wards, we are of the view that, while agreeing with the order of respondent no. 2, these two excess cartons were being smuggled at the instance of the appellant in a situation where he was fully aware that the truck was carrying 230 cartoons and had made the mistake of declaring 228 cartons. Our examination of the issues on facts and on merits of the matter completely alloy the feelings of the appellant that he has been rendered remediless. 8. We notice from a plain reading of the complaint dated 24.11.2003 addressed to respondent no.2, that the appellant made serious allegations against some of the functionaries of the department at Raxaul. Respondent no.2 promptly acted and transferred all of them from Raxaul to other places to ensure a free, fair and objective enquiry. This much for the objective approach of the respondents. Respondent no. 2 has noticed in his order that the appellant, by his strident approach, had fouled the atmosphere of the customs office at Raxaul. Even if we take a very liberal approach in favour of the appellant 9 that he was acting as a true and sincere whistle- blower, does not take the appellant case far for the reason that respondent no.2 found, with which we entirely agree, that the truck was carrying two excess cartons belonging to some other party and the appellant had knowingly not declared the same. Law is well settled that if the allegations have found to be true, then malafides loose all force. Reference may be made to the judgment of the Supreme Court in Bharat Iron Works Vrs. Bhagubhai Balubhai Patel and Ors, A.I.R. 1976 S.C. 98, and such other cases. 9. In the result, we agree with the order dated 07.09.2004 (Annexure-5), passed by respondent no. 2. The appeal is dismissed. In the circumstances of the case, there shall be no order as to costs. (Ahsanuddin Amanullah, J.) I agree. (S.K. Katriar, J.) (Ahsanuddin Amanullah, J.) Patna High Court, Patna Dated the 9th day of August, 2011 Safik/ (AFR)