Gowri Shankar, Member (T)

1. After hearing the parties on the stay application, we have decided to take up the appeal itself for disposal.

2. In the order impugned in the appeal, the Commissioner of Customs, Kandla, has ordered revocation of the licence issued under Regulation 10 of the Customs House Agent Licensing Regulations, 1984 (hereafter the Regulations). The reason advanced for the revocation is that the appellant sub-let the licence to Laxmi Forwarders, Gandhidham, in contravention of the provisions of Regulation 13. The notice issued to the appellant contained two articles of charges. The first article alleged that the appellant had "sublet/transferred their CHA licence by way of allowing M/s. Laxmi Forwarders, Gandhidham to act as CHA and clearing the goods through Customs on their behalf unauthorisedly ...." Article 2 is nothing more than a repetition of the first article. It alleges that the appellant had "failed to act as genuine CHA and also kept Customs Authority in dark by way of sub-letting their CHA Licence and not handled the Customs Clearance work at their own....." Each article alleges contravention of Regulation 13. After conducting the enquiry as provided in the Regulations, the enquiry officer, Deputy Commissioner of Customs, has in his report found against the appellant only on the ground that the payments with regard to six shipping bills were received by the appellant, not from the exporter but from Laxmi Forwarders. He concludes, "M/s. Dilip A. Goplani, by raising debit notes on third party only means that the noticee have sub-letted their CHA licence to M/s. Laxmi Forwarders and thereby has violated the CHA licensing provisions and regulations. Therefore, the charges framed in the articles of charges stand proved." The Commissioner has, in his order, agreed with the finding of the enquiry officer.

3. Regulation 13 provides that "a licence granted or renewed under the Regulations shall be deemed to have been granted or renewed in favour of the licensee and no licence shall be sold or otherwise transferred." For contravention of this regulation to be established, it will have to be shown that the work that the licensee was required to do as a custom house agent was done, not by him, but by some other person to whom the licence was sold or transferred. If such a licence is sold or otherwise transferred, it is the buyer or the transferee who, either directly or through persons under his control, would be carrying out the work relating to clearance of the cargo through Customs, involving processing of documents in the Custom House, carrying out work relating to presentation of cargo for examination in the docks, payment of fees and duties, etc.

4. The six shipping bills in question were filed by Harry International, Morvi. There is a total lack of evidence to show that any of the work relating to clearance of the goods and processing of the shipping bills was carried out by anyone other than the employees of the appellant. The contention that the appellant raised before the enquiry officer that the work was in fact carried out by Ravi Nair who was the authorised employee has not been rebutted by him. It is therefore not possible to conclude that the licence has been sold or otherwise transferred.

5. We now come to the ground on which the licence has been revoked that the payment for the work relating to the shipping bills was received by the appellant not directly from the exporter but from Laxmi Forwarders. Counsel for the appellant explains that Laxmi Forwarders was a clearing and forwarding agent that had been engaged by Harry International in order to generally oversee the work relating to export of goods manufactured by Harry International and that, in the execution of this work, Laxmi Forwarders had asked the appellant to carry out Customs clearance. He points out that the appellant had received specific authorisation from the exporter as required in Clause (a) of Regulation 14. Laxmi Forwarders received payments for all its services from Harry International and passed on a portion of the amount to the appellant. We do not find anything in the Regulations which prohibits the Customs agent from receiving payment for services rendered by anyone other than the importer or exporter on whose behalf he has functioned as an agent. Mere receipt of money from a person other than an importer or exporter is no evidence that a licence has been transferred to the person who paid the money. This is apart from the circumstances in which the appellant received payment from Laxmi Forwarders, appears to us to be genuine in the normal course of business affairs. Two decisions of the Tribunal in P.P. Dutta v. CC - 2001 (136) E.L.T. 1042 and Krishan Kumar Sharma v. CC - 2000 (122) E.L.T. 581 have held that such act of payment by itself is insufficient to conclude any transfer of licence. There was therefore no basis whatsoever for revocation of the appellants licence.

6. The appeal is accordingly allowed and the impugned order set aside.