By TIOL News Service

MUMBAI, APR 05, 2016: THE facts involved are crystallised as below –

On receipt of the order of Tribunal, the CHA approached the Commissioner on 21/05/2015 with a request to implement the same.

As noresponse was received, the applicant is before the CESTAT with a Miscellaneous application for implementation of the CESTAT order.

The applicant informed the Bench that they have been functioning as CHA since 1970 and pursuant to the suspension of the licence on 17/10/2008 they have been out of business for nearly 7 ½ years.

The AR submitted that Department has filed an appeal before the Bombay High Court on 29/09/2015 along with a notice of motion No. 2673 of 2015 and a stay has been sought of the Tribunal order pending the hearing and final disposal of the appeal. Reliance is placed on the decision in CC(Gen) vs. West End Shipping Agency 2015-TIOL-83-HC-MUM-CUS .

The Bench observed that the order of the Tribunal had been passed considering the fact that the applicant was out of business for more than six years and therefore, the punishment was deemed to be sufficient for the offences committed and, therefore, till the time the licence is not restored, the applicant continues to undergo punishment on this count.

Adverting to the Supreme Court decision in the case of UOI vs. Kamlakshi Finance Corporation Ltd. – 2002-TIOL-484-SC-CX-LB the Bench emphasized that it was incumbent upon the Commissioner to implement the order of the Tribunal within a reasonable time.

Noting that the inquiry officer had taken almost 2 ½ years to submit the inquiry report and thereafter almost a period of nine months had elapsed before the inquiry report had been given to the applicant and thereafter, the Commissioner had taken almost eight months to decide the issue, the Bench observed that there have been delays at entry levels and during this process valuable right to livelihood of the applicant had been denied. Citing the provisions of CHALR, 2004 and CHALR, 2013 which mandate the time limits for conducting the enquiry etc., the Bench further observed that there was a total lack of responsibility and accountability on behalf of the revenue officers while conducting the proceedings under various regulations governing the CHAs and the entire process took almost four years and this led to impinging upon the fundamental right to livelihood of the CHA.

Extracting the Supreme Court decision in the case of Olga Tellis&Orsvs Bombay Municipal Corporation, 1986 AIR 180 , the Bench observed -

"10. There is no responsibility or accountability in the conduct of revenue. The revenue neither follows the time limits prescribed under law nor follows the order of the higher forums, despite the directions of the Hon Supreme Court in this regard."

It was concluded - we can only suggest the appellants to approach such fora which are endowed with the necessary powers not only to compel such public authorities to observe judicial discipline but also ensure that such public authorities are visited with appropriate consequences for such conduct .

In passing: Also see 2016-TIOL-639-HC-MUM-CX & 2016-TIOL-63-HC-PATNA-CUS .

(See 2016-TIOL-801-CESTAT-MUM)