+ The licence stood restored after the suspension was set aside following the Tribunal's order dated (29.02.2008), but there is no explanation forthcoming as to why when the enquiry proceedings commenced on 19th November, 2008, but the report of such enquiry was not submitted till 4th January, 2013, by the Enquiry Officer, namely, the Assistant Commissioner of Customs, National Academy of Customs, Excise and Narcotics, Western Region, Bhandup, Mumbai. None pulled up this Enquiry Officer for this serious lapse and the Commissioner of Customs to whom the enquiry report was submitted, upon careful perusal, according to him, of the same, proceeded to impose a penalty and that is of revocation of the Customs House Agent Licence (and the appeal against this order was dismissed by the CESTAT (supra)).
+ The Tribunal specifically notes the argument of the appellant that earlier when the Customs House Agent Licence was under suspension, that was revoked on 29th February, 2008, by the Tribunal with a speaking order. The Tribunal agreed with the contention of the appellant's advocate that it had not contravened the provisions of Regulations 13(d) and 13(e) and only the charge of violation of Regulation 13(a) stands proved. Thus what was attributed to the appellant was an act of not obtaining proper authorization from the exporter whereas all other charges had no basis. Secondly, there was an argument raised specifically that revocation of the licence for contravention of Regulation 13(a) is a penalty/punishment disproportionate to the alleged lapses. A third argument was noted that the enquiry proceedings were not conducted properly and the appellant was not given adequate opportunity to make submissions.
+ In paragraph 5.2, the Tribunal brushes aside its own earlier speaking order on the ground that the observations therein are made prior to the conduct of the enquiry proceedings. The enquiry proceedings, on the own showing of the Tribunal, were conducted during June to November, 2008 and a report submitted in June, 2013.
+ We do not find any advertence by the Tribunal to the argument that a period from June to November, 2008 for conduct of the enquiry and submission of the report in June, 2013, has not been explained. There is absolutely no discussion in the Tribunal's order as to why this delay occurred and whether that could be said to be fatal to the proceedings.
+ The Tribunal also does not consider the fact that during this period the licence of the appellant was renewed when it expired by efflux of time. Thus, the Tribunal should have noted that if the penalty is imposed on 28th March, 2013, from 29th February, 2008 to 28th March, 2013, the petitioner was merrily carrying on the business as a Customs House Agent and was also obtaining renewal of the licence which expired by efflux of time.
+ If the enquiry was continuing and the period of the licence expired allegedly by efflux of time during such enquiry, then, there is no explanation forthcoming as to why the licence came to be renewed. Once the facts are so glaring, the lapse on the part of the appellant was serious and it actively associated itself with smuggling of the red sanders, then, all the more the Tribunal should have considered this aspect a little more carefully.
+ In the order of the Commissioner as well, we do not find any reference being made to the aspect of delay in enquiry or the renewal of the Customs House Agent licence. Thus, the Customs House Agent never met the exporter but was dealing with an intermediary. It is a lapse on his part of not being acquainted with the exporter, but dealing with one M/s. Max Shipping and Baburao Chinta. If failure to exercise due diligence and lack of care are the real charges, then, we do not see how the appellant is held to be actively involved in attempting to smuggle or smuggling of red sanders. Thus, not knowing the exporter, but having signed and filed the Shipping Bill on the basis of the documents received from M/s. Max Shipping was the real charge and held to be proved.
+ Something more is required to establish and prove aiding, abetting and actively assisting in smuggling of red sanders. Once the appellant was guilty essentially of not contacting and obtaining authorizations from the exporter, but relying upon some middlemen, then, we find that revocation of licence was not a penalty which could have been imposed for this act.
+ We are of the opinion that sending the matter back to either the Commissioner or the Tribunal would serve no purpose. We accept the stand of the appellant that at best he could be held to be guilty of this charge and for the same the penalty that he has suffered of loss of licence as a Customs House Agent from 28th March, 2013, till today should be sufficient. Further, the forfeiture of security deposit in addition to the above can also be ordered.
