Bombay High Court
M/S Skypakservices Specialists … vs Union Of India Thorugh The Ministry Of … on 30 June, 2025
Author: M.S. Sonak
Bench: M.S. Sonak
2025:BHC-OS:9660-DB
60-WP.1326.14 (J).DOCX
ppn/Rekha Patil
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
Digitally signed by
ORDINARY ORIGINAL CIVIL JURISDICTION
PRACHI
PRACHI PRANESH
PRANESH
NANDIWADEKAR
NANDIWADEKAR WRIT PETITION NO. 1326 OF 2014
Date: 2025.06.30
15:25:32 +0530
WITH
NOTICE OF MOTION NO. 617 OF 2017
M/s. Skypak Services Specialists Limited
A Public Limited Joint Stock Company
being registered under the provisions of
Companies Act, 1956 having its registered
office at 3, Sona Udyog,
Parsi Panchayat Road, Andheri East,
Mumbai - 400 069 ... Petitioner
Versus
1. Union of India
Through the Ministry of Finance
(represented by its secretary), Department
of Revenue having his office at North Block,
New Delhi.
2. Commissioner of Customs
Chhatrapati Shivaji International Airport,
having his office at Avas Corporate Point,
Andheri (East), Mumbai - 400 059.
3.Chief Commissioner of Customs, Mumbai
Having his office at 5/6th floor,
Avas Corporate Point, Makwana Lane,
Andheri Kurla Road,
Andheri (East),
Mumbai 400 059. ... Respondents
______________________________________________________
Mr. Chirag Shetty i/by Economic Law Practice for Petitioner.
Ms. Maya Majumdar a/w Mr. Abhishek R. Mishra for
Respondents.
_____________________________________________________
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CORAM : M.S. Sonak &
Jitendra Jain, JJ.
RESERVED ON : 24 June 2025
PRONOUNCED ON 30 June 2025
Judgment (Per Jitendra Jain, J.):-
1. This petition challenges an order passed by respondent
no.2 dated 28 November 2013 and the order dated 20
February 2014 passed by respondent no.3 confirming the
Order-in-Original (O-I-O) whereby the petitioner’s registration
under the Courier Imports And Exports (Clearance)
Regulations, 1998 (‘1998 Regulations’) was revoked and an
order of forfeiture of Rs.10 lakhs, deposited by the petitioner
as security at the time of registration, was passed.
Brief Facts:-
2. The petitioner is engaged in the business of providing
courier services. The petitioner was granted registration under
the 1998 Regulations for conducting its business of clearing
express import/export cargo through the courier mode as an
authorised courier at the Mumbai terminal.
3. In the first week of November 2012, intelligence was
received that the two consignments imported from gulf
country carried contraband gold jewellery. Based on this
intelligence, two consignments covered by Airway Bills
(‘AWB’) Nos.9717334743 and 9717334738 dated 8 November
2012 were detained. The clearance of the said two
consignments were handled by the petitioner for which ‘Form
IV’ Bill of Entry was filed by the petitioner. The goods werePage 2 of 23
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60-WP.1326.14 (J).DOCXdeclared as ‘Die and Hydraulic bottle jack’ valued at
Rs.8,728/- and the importers were entities controlled by one
Shri Mansukhlal Dhanak. On an in-depth enquiry and
examination of the said two consignments, gold jewellery
weighing 4879.9 gms. was found concealed in the die and
hydraulic bottle jack. The estimated value of the gold on the
date of seizure was Rs . 1.21 crore.
4. On investigation, it was revealed that the petitioner was
handling courier parcels of ‘Balaji Engineering’, ‘Chamunda
Enterprises’ and ‘Regent Engineering’, entities belonging to
Shri Mansukhlal Dhanak, without obtaining proper
authorisation from the consignee. It was also revealed during
the investigation that the petitioner had cleared more than
250 consignments described as “hydraulic jacks, dies and
bladeless fans” from the period April 2012 to October 2012.
These 250 consignments belong to the above referred entities
of Shri Mansukhlal Dhanak.
5. The respondents recorded the statements of Shri
Mansukhlal Dhanak, Shri Mohan Naik and the employees of
the petitioner. In the investigation, it was revealed that Shri
Mansuklal Dhanak, through Shri Mohan Naik, engaged the
petitioner for the clearance of imports since Shri Mohan Naik
acted as an intermediary and knew Shri Mansuklal Dhanak
and the petitioner. In the statements recorded it is admitted
that these consignments were cleared from April to October
by the petitioner and Shri Dhanak has made payments
through illegal channels. Therefore, although only two
consignments are subject matter of this petition, we cannot
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lose sight of the fact of past clearance. In the statement
recorded, it was noticed by the respondents that the petitioner
has not complied with the obligations cast upon the petitioner
under the 1998 Regulations. Therefore, a show cause notice
came to be issued against the petitioner.
6. Based on above, the proceedings were initiated by the
respondents against the petitioner under the 1998
Regulations.
7. On 28 November 2013, an O-I-O was passed after
considering the reply of the petitioner and after hearing the
petitioner. The O-I-O holds that the petitioner has not carried
out its obligation under Regulation 13(a), 13(c), 13(g), 13(i)
and 13(j) of the 1998 Regulations and, therefore, the courier
license issued was deregistered under Regulation 14 along
with forfeiture of the security deposit.
8. Being aggrieved by the aforesaid O-I-O, the petitioner
availed the alternate remedy of challenging the aforesaid
order before respondent no.3 under Regulation 14 of the 1998
Regulations. On 20 February 2014, respondent no.3
confirmed the O-I-O passed by respondent no.2.
9. It is on the above backdrop that the present petition is
filed under Article 226 of the Constitution of India challenging
the aforesaid two orders since there is no further remedy
provided under the 1998 Regulations.
10. We have heard learned counsel Mr. Shetty for the
petitioner and the learned counsel Ms. Majumdar for the
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respondents. We propose to deal with the submissions of the
parties in our analysis and findings.
Analysis & Conclusions:-
11. On 9 November 1998, the Central Board of Excise and
Customs through a notification notified the Regulations for
regulating the business of courier at the Airport for the
purposes of import and export. These regulations are called
“the Courier Imports and Exports (Clearance) Regulations,
1998”. These 1998 Regulations apply for assessment and
clearance of goods carried by the authorised couriers on
incoming or outgoing flights or by any other mode of
transport on behalf of a consignee or consignor for a
commercial consideration.
12. Regulation 3 defines certain terms like “Authorised
Courier,” “documents,” etc. Regulation 4 deals with packaging
of goods to be imported or exported by courier. The said
regulation provides that the goods shall be packed separately
in identifiable courier company bags, with appropriate labels
and each package of import or export goods shall bear a
declaration from the sender regarding the contents of the
package and the value thereof. Regulation 5 deals with
clearance of import goods and lays down the procedure to be
followed by the Authorised Courier for clearing the goods
imported in the country. Regulation 6 deals with clearance of
export goods.
13. Regulation 7 provides for application for registration to
be made by a person intending to operate as an authorised
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courier and thereafter under Regulations 8 and 9, if the
applicant satisfies the conditions and on scrutiny of
application, the applicant is found to be eligible, then under
Regulation 10, registration is granted as an authorised courier.
Regulation 10B prescribes for validity of registration and it
states that a registration shall be valid unless and until
revoked. Regulation 11 deals with execution of bond and
furnishing of security by the authorised courier.
14. Regulation 13 provides for various obligations of
Authorised Courier. Regulation 14 provides for deregistration.
The said Regulation 14 provides that the registration may be
revoked and the security may be forfeited if there is a failure
of the Authorised Courier to comply with the conditions of the
bond or there is a failure to comply with any of the provisions
of the 1998 Regulations or there is misconduct on the part of
the Authorised Courier which renders him unfit to transact
any business in the Custom Station. The order of revocation
can be challenged under Regulation 14.
15. Insofar as the present petition is concerned, the relevant
clauses of Regulation 13 are transcribed below for
convenience :-
“REGULATION 13. Obligations of Authorised Courier- An
Authorised Courier shall –
(a) obtain an authorisation, from each of the consignees of the
import goods for whom such Courier has imported such
goods or consignors of such export goods which such
courier proposes to export, to the effect that the Authorised
Courier may act as agent of such consignee or consignor, as
the case may be, for clearance of such import or export
goods by the proper officer;
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[Provided that for import consignments having a declared
value of ten thousand rupees or less, the authorization may
be obtained at the time of delivery of the consignments to
consignee]
(c) exercise due diligence to ascertain the correctness and
completeness of any information which he submits to the
proper officer with reference to any work related to the
clearance of import goods or [of] export goods;
(g) maintain records and accounts in such form and manner as
may be directed from time to time by an [Assistant
Commissioner of Customs or Deputy Commissioner of
Customs] and submit them for inspection to the said
Assistant Commissioner of Customs or an officer authorised
by him, wherever required.
(i) verify the antecedent, correctness of Importer Exporter
Code (IEC) Number, identity of his client and the
functioning of his client in the declared address by using
reliable, independent, authentic documents, data or
information;
(j) (not sub-contract or outsource functions permitted or
required to be carried out by him in terms of these
regulations to any other person, without the written
permission of the “[Principal Commissioner of Customs or
Commissioner of Customs, as the case may be]”
16. We now propose to deal with each of the Regulations
which have been invoked in the present case.
17. Regulation 13 (a) provides that the Authorised Courier
is obliged to obtain an authorisation, from each of the
consignees of the import goods for whom such courier has
imported such goods and such authorisation should be to the
effect that the Authorised Courier acts as an agent of such
consignee for clearance of such imported goods.
18. Mr. Shetty, learned counsel for the petitioner brought to
our attention page 76 of the Writ Petition and submitted that
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the petitioner has complied with the obligations imposed by
Regulation 13(a). He further submitted that in any case, Mr.
Mohan Naik who sought the said courier service from the
petitioner and Shri Mansukhlal Dhanak, the consignee have
accepted in their statement that the petitioner was authorised
to clear the imported goods. Therefore, he submits that there
is no dispute that the petitioner was authorised by these two
people for clearing the consignments under consideration. He,
therefore, submitted that there is no violation of Regulation
13(a).
19. Ms. Majumdar, learned counsel for the respondents
submitted that the so called authorisation at page 76 of the
Writ Petition is dated 11 April 2012 whereas the consignments
under consideration are of 8 November 2012 and, therefore,
the said so called authorisation is not an authorisation for the
import of the consignments under consideration. She further
submitted that the said document, by no stretch of imgination,
can be considered as authorisation as required under
Regulation 13(a). She also submitted that the said
authorisation is fabricated and not in the name of the
petitioner and also not issued by the original importer.
20. Reliance placed on page 76 by the learned counsel for
the petitioner to submit compliance of Regulation 13(a) is
scanned as under : –
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21. The discussion on this Regulation by respondent no.2 is
at page 24 of the O-I-O.
22. Regulation 13(a)obliges an Authorized Courier to obtain
an authorization on behalf of the consignee or consigners as
agent for clearance of import/export of goods. The document
dated 11 April, 2012 relied upon by the petitioner to submit
that they have complied with Regulation 13(a) cannot be
accepted as an authorization contemplated under the said
Regulation for various reasons. Firstly, the document is
addressed to ‘Sky Com Courier’ whereas the petitioner before
us is ‘Skypak Services Specialists Limited’. The said document,
so-called authorization, is not in the name of the petitioner
but in the name of another entity. The other entity is Sky Com
Courier Limited as per the statement of Shri Mohan Naik
dated 10 November, 2012. Therefore, the contention of the
petitioner that there is an authorisation in their favour, which
is at page 76 of the Writ Petition, is required to be rejected.
23. Secondly, the said document is dated 11 April, 2012
whereas the consignment detained is of 8 November, 2012.
The said document does not say the petitioner is authorized to
clear the goods imported by the importer for all times to
come. The authorisation should be on or before the date of
imports. Statements subsequently recorded in which the
Petitioner is said to have been authorised is not compliance if
Regulation 13(a). Thirdly, the said document only states that
the delivery will be taken from Andheri office and the
consignment should not be sent to Rajkot. Therefore, even on
this count the said document does not comply with the
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requirement of Regulation 13 (a). Fourthly, Shri Mohan Naik
in his statement on 29 November, 2012 admitted that he had
prepared the said document on the letterhead of Balaji
Engineering. The said statement clearly shows that there is no
authority as contemplated under Regulation 13(a) in favour
of the petitioner by any of the entities belonging to Shri
Mansukhlal Dhanak.
24. In the courier Bill of Entry, an authorised courier must
declare that they have obtained authorisation from the
importer. One such Bill of Entry is at page 118 of the petition.
In the instant case, the said declaration given is false because
no such authorisation has been obtained. On a reading of the
statements of Shri Dhanak and Shri Mohan Naik, it is clear
that petitioner had no contact with Shri Mansukhlal Dhanak
but the work of clearing given by Mansukhlal Dhanak was
sub-contracted by Shri Naik to the petitioner. Therefore,
clearly there is serious violation of Regulation 13(a). The
consignment detained pertained to Airway Bill 971733473
and 9717334738 which as per pages 77, 78 and 91 of the
petition pertains to Chamunda Trading and Regent
Engineering whereas page 76 which the petitioner claims to
be authorisation is on a letter head of Balaji Engineering.
Therefore, even on this count petitioner’s submission is found
to be incorrect.
25. Therefore, for all the aforesaid reasons, the submission
of the learned Counsel for the petitioner that document at
page 76 of the Writ Petition, which is reproduced above,
complies with Regulation 13(a) is to be rejected. We do not
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see any infirmity in the orders of respondent Nos.2 and 3 in
concluding that the petitioner has violated its obligation cast
under Regulation 13(a).
26. Regulation 13 (i) obliges an Authorized Courier to verify
the antecedent, correctness of Importer Exporter Code (IEC)
Number, identity of his client and the functioning of his client
in the declared address by using reliable, independent,
authentic documents, data or information.
27. Mr. Shetty, learned Counsel for the petitioner, submitted
that the petitioner verified the IEC on the portal of the
respondents and, therefore, the petitioner has discharged its
obligations cast under Regulation 13(i).
28. Ms. Majumdar, learned Counsel for the respondents,
submitted that on a perusal of the statements recorded and
the investigation done, the petitioner failed to verify the
identity and functioning of its client despite being obligated to
do so. She submitted that admittedly the business was
obtained by the petitioner from Shri Mohan Naik, who was
serving as intermediary between the petitioner and the
entities of Shri Manshukhlal Dhanak. She, therefore,
supported the orders of both the Authorities on this count.
29. Shri Mansukhlal Dhanak, in his statement on 10
November, 2012, has admitted that he does not have any IEC
issued in the name of his company. There is no rebuttal of this
by the petitioner. Shri Mansukhlal Dhanak in his statement
has also admitted that the addresses of the three entities are
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bogus and fake. He has also admitted that the business of
clearing the imported goods was given to the petitioner by
Shri Mohan Naik, who happened to be known to Shri Dhanak.
Furthermore, the airway bill annexed at page 116A of the Writ
Petition in favour of ‘Chamunda Trading’, shows the address
of Borivali, Mumbai. We, therefore, do not accept the
contention of the learned Counsel for the petitioner that the
obligation cast under Regulation 13(i) has been discharged.
30. The said regulation requires the authorised courier to
verify not only the correctness of the IEC but also to verify the
antecedents of the importer, identity of the importer and
functioning of the importer at the declared address by using
reliable, independent, authentic documents, data or
information. We have not been shown any material by the
petitioner that would compel us to conclude that the
petitioner has verified the antecedents, identity, and
functioning of the entities owned by Shri Manshukhlal
Dhanak at the declared address using reliable, independent,
and authentic documents, data, or information.
31. One of the addresses on the Airway Bill is of Borivali,
Mumbai, and the petitioner’s is also from Mumbai, which at
least they could have verified as required under Regulation
13(i). Merely, verifying the IEC from the portal of the
respondents would not relieve the obligation cast under
Regulation 13(i) for verifying the antecedent, identity and
functioning of the importer on the declared address. The
petitioner’s counsel himself has admitted that the business
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from these three entities were received through one Shri
Mohan Naik, who was an intermediary.
32. Therefore, in our view, in the absence of any material,
we cannot accept the submission of the petitioner that the
obligation cast under Regulation 13(i) has been discharged. It
is also important to note that in a period of six months around
250 consignments were cleared on behalf of the entities
owned by Shri Mansukhlal Dhanak. That means on an
average more than one consignment a day was cleared. If this
is the magnitude of the business obtained by the petitioner, it
was obligatory on its part to have verified the antecedents,
identity and functioning of such a person at the declared
address. The statements recorded of Shri Dhanak, Shri Naik
and Shri Menezes clearly evidences that the petitioner did not
know anything about the entities of Shri Dhanak which clearly
violates Regulation 13(i).
33. Therefore, in our view, the findings arrived by both the
authorities cannot be said to be vitiated. In our view, the
petitioner has not discharged its obligation cast under
Regulation 13(i) of the 1998 Regulation.
34. Regulation 13(g) requires an Authorized Courier to
maintain records and accounts in such form and manner as
may be directed from time to time and submit them for
inspection whenever required.
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35. Mr. Shetty, learned Counsel for the petitioner, submitted
that they have correctly maintained the records and,
therefore, the said obligation is discharged.
36. Ms. Majumdar, learned Counsel for the respondents, has
relied upon the findings of both the Authorities in support of
her submission that there has been a violation of Regulation
13(g).
37. At the outset, we wish to state that we have not been
shown any records or documents which the petitioner claims
to have maintained in compliance with Regulation 13(g). The
order in O-I-O categorically states that the petitioner could
not produce any authentic records of the entities controlled by
Shri Mansukhlal Dhanak. None of the documents of these
entities were produced before us. The said findings in the
O-I-O have been confirmed by respondent No.3. Except for
making a bald statement, we have also not been shown what
records the petitioner has maintained with respect to the
entities of Shri Mansukhlal Dhanak. Therefore, in our view,
there is violation of Regulation 13(g) by the petitioner. In the
absence of any perversity shown in the impugned orders and
the failure of the petitioner to produce any records before us,
we do not agree with the contention of the petitioner that
there has been compliance of Regulation 13(g).
38. Regulation 13(j) provides that an Authorized Courier
shall not sub-contract or outsource functions to be carried out
by him without the written permission of the Principal
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Commissioner of Customs or Commissioner of Customs.
Insofar as, this regulation is concerned, we agree with the
learned counsel for the petitioner that it is not the case of the
respondents that the petitioner has sub-contracted its
functions to any other persons. Rather, the case of the
respondents appears to be that because Shri Mohan Naik had
sub-contracted his work to the petitioner, Regulation 13(j)
was attracted. In our view, since the petitioner has not
subcontracted its functions, Regulation 13(j) cannot be said to
have been violated. Therefore, the findings of both
authorities, insofar as this regulation is concerned, are
vulnerable.
39. However, in our view, both the Authorities are justified
in recording adverse findings regarding the petitioner’s non-
compliance with the obligations under Regulations 13(a),
13(i), and 13(g). Given these serious violations, the finding
regarding Regulation 13(j) of the 1998 Regulations, even if
excluded, will not affect the impugned orders in the least.
Submissions and Findings on Disproportionality:-
40. Mr. Shetty, alternatively, contended that revocation of
the licence and forfeiture deposit is disproportionate and,
therefore, this Court should interfere in the impugned orders
insofar as revocation is concerned. He submitted that there is
no mens rea on the part of the petitioner in non-compliance
with the regulation and relying upon the following three
decisions, submitted that the revocation of the licence in the
absence of mens rea was unjustified.
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i) Exim Cargo Services vs. Commissioner of Customs
(General)1
ii) Kunal Travels (Cargo) vs. CC (I & G), IGI Airport, New
Delhi2 &
iii) Ashiana Cargo Services vs. Commissioner of Customs
(I&G)3
iv) D. S. Cargo Agency Vs. CC4
41. Regulation 14 deals with deregistration. Regulation
14(1) provides for revocation and forfeiture of security on any
of the grounds mentioned therein. Regulation 14(1)(b) refers
to failure of the Authorized Courier to comply with any of the
provisions of the 1998 Regulations. In the instant case, we
have already held above that the petitioner has not carried out
its obligation under Regulation 13(a), 13(g) and 13(i).
Therefore, the case of the petitioner squarely falls within
Regulation 14(1)(b) of the 1998 Regulations.
42. The facts narrated above clearly demonstrate that the
petitioner has been negligent in carrying out its obligation
under the 1998 Regulations. These obligations are cast on the
Authorised Courier since the petitioner was engaged in the
business of clearance of imports and exports. There is a high
degree of responsibility cast upon the petitioner in the
discharge of its functions because the repercussions of illegal
imports and exports are economically and otherwise also far
reaching.
1
[2019 (368) ELT 1024 (Del.)]
2
[2017 (354) ELT 447 (Del.)]
3
[2014 (3) TMI 562 – Delhi High Court]
4
2023 (9) TMI 1202 (Del.)
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43. In the instant case, more than 250 consignments were
cleared by the petitioner on behalf of the entities which were
not genuine. It is only after a period of six months and on
receipt of intelligence that the two consignments under
consideration were detained and from which approximately
4879 gms. of gold was seized. The said gold was smuggled
into the country in violation of the law. Had the petitioner
discharged its obligation under Regulation 13, the illegality
committed by the bogus entities of Shri Mansukhlal Dhanak
could have been prevented at least from being carried out
through the petitioner. Shri Dhanak has admitted in his
statement that payments for all these consignments were sent
to the Gulf by illegal channels. This shows that earlier
consignments cleared by the petitioner amounted to
smuggling, leading to a huge loss to the State.
44. There are reasons why these obligations are cast and the
business of courier at the Airport is regulated. Considering
the nature of the business in which the petitioner is engaged
and for which he was authorised under the 1998 Regulations,
non-compliance with the Regulations must be dealt with
strictly. If any lenient view is taken, particularly in light of
the present case, it would send a wrong signal, and this Court,
under Article 226 of the Constitution of India, cannot condone
such leniency. Any such exercise of discretion of leniency will
only encourage persons to commit the offence by taking
recourse to the services of the courier agencies. We, therefore,
do not accept the submission of the petitioner in the instant
case that a lenient view should be taken. In our view and
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more so looking at the facts of the present case and findings
arrived at by us as above, the Authorities were justified in
revoking the licence and forfeiting the security deposit.
45. On a reading of various obligations cast on authorised
couriers under Clauses (a) to (j) of Regulation 13, in our view,
an authorised courier acts in a fiduciary capacity on behalf of
their client and the customs authorities. He is a bridge on
which the customs authorities rely heavily in ensuring that
clearance of imports and exports of goods affecting the
economy is legal. Regulation 13(b) requires the authorised
courier to advise his clients to comply with Customs Act, Rules
and Regulations. Regulation 13(c) requires the exercise of due
diligence to ascertain correctness of various information
submitted to the authorities. He is obliged not to withhold
information from the assessing officer of the Customs under
Regulation 11, and the authorised courier is liable to pay duty
and interest also. In our view and on dissection of Regulation
13 and 1998 Regulation as a whole, there can be no iota of
doubt in the facts of the present case that there is any
disproportionality in revoking the license. The petitioner has
shown utter disregard to the 1998 Regulations, which has
resulted into huge revenue loss to the exchequer. Beneath
every obligation lies deep responsibility and discharge of these
obligation is not merely paper compliances. The revocation is
because the petitioner failed to carry out its obligations under
the 1998 Regulations which if carried out would have
detected the bogus importers and saved the nation of the
outflow of foreign exchange by illegal means. It is with the
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said object that obligations are framed under the 1998
Regulations.
46. The Government has been simplifying the law and
procedure relating to imports through courier from time to
time. Accordingly, lot of trust and reliance has been placed on
the courier agencies. A very clear procedure has been put in
place by way of Courier Regulations to stream line the imports
through courier mode. It was incumbent upon the Petitioner
courier agency to adhere to the Regulations in order to
safeguard the interest of Revenue and the trust placed on
them. The Petitioner was mandated to work within the legal
framework of the Customs Act, 1962, Rules and Regulations
made thereunder. The Petitioner failed to do so. The Petitioner
did not exercise due diligence in discharging its obligations
under the Regulations. By violating the Regulations, it had
given scope for massive misuse of the facility given in addition
to loss of Revenue. In short, the Petitioner courier agency has
breached the trust reposed on it by the Revenue. Therefore,
the revocation of license is justified and any leniency shown in
the misconduct of this nature would send wrong signals.
Punishment of revocation of licence would certainly go a long
way to act as a deterrent.
47. Keeping Regulation 13 analysed and cited above would
certainly show that by a legal fiction the Petitioner steps into
the shoes of the importer and has a legal responsibility which
crystallises into legal liability to answer any contravention or
fraud or for that matter any criminality in conduct. In the
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instant case, we notice that two consignments were found
which smuggled gold of 4879.9 grams which indicates
criminality. The Petitioner, if not directly, vicariously becomes
liable for such act on account of his non-discharge of the
obligations cast under the Regulations.
48. The issue also arose before the Hon’ble Delhi High Court
in the case of M/s. Bombino Express Pvt. Ltd. v. The Chief
Commissioner of Customs (Delhi Zone) & Anr.5 (2015) 315
ELT 496 where on very similar regulations and facts, the Delhi
High Court upheld the revocation of licence under Regulation
14 for violation of Regulations 13(a) and 13(g) of the 1998
Regulations.
49. It is also important to note that we are not sitting in
Appeal from the orders of both the Authorities as the
petitioner has challenged the orders by invoking our
extraordinary jurisdiction under Article 226 of the
Constitution of India. Our scope of interference is much
narrower than in an appeal and moreso the petitioner in the
present case cannot invoke equitable and discretionary
jurisdiction for showing the leniency in the present facts of the
case. We do not find any infirmity in the decision-making
process of both the Authorities nor is it the case of the
petitioner. The findings of both the Authorities are based on
facts and on examination independently by us, we also agree
with the concurrent findings of facts arrived at by both
authorities. Therefore, in our view, no leniency can be
5
(2015) 315 ELT 496
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accorded to the petitioner and order of revocation and
forfeiture of deposit is required to be confirmed and same
cannot be treated as disproportionate in the facts of the
present case.
50. It is apt to refer to the decision of the Hon’ble Supreme
Court in the case of Commissioner of Customs v. K. M.
Ganatra & Co.6 reported in (2016) 4 SCC 687 wherein the
Supreme Court has affirmed that for revocation of license
mens rea is not relevant if there is non-compliance of
obligations cast under the Regulations. The relevant para 18
of the said decision reads as under:
In this regard, Ms Mohana, learned Senior Counsel for the
appellant, has placed reliance on the decision in Noble Agency v.
Commr. of Customs [Noble Agency v. Commr. of Customs, (2002)
142 ELT 84 (Tri)] wherein a Division Bench of CEGAT, West Zonal
Bench, Mumbai has observed : (ELT p. 87, para 12)
“12. The CHA occupies a very important position in the
Custom House. The Customs procedures are complicated.
The importers have to deal with a multiplicity of agencies
viz. carriers, custodians like BPT as well as the Customs.
The importer would find it impossible to clear his goods
through these agencies without wasting valuable energy
and time. The CHA is supposed to safeguard the interests
of both the importers and the Customs. A lot of trust is
kept in CHA by the importers/exporters as well as by the
government agencies. To ensure appropriate discharge of
such trust, the relevant regulations are framed. Regulation
14 of the CHA Licensing Regulations lists out obligations of
the CHA. Any contravention of such obligations even
6
(2016) 4 SCC 687
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without intent would be sufficient to invite upon the CHA
the punishment listed in the Regulations.”
We approve the aforesaid observations of CEGAT, West Zonal
Bench, Mumbai and unhesitatingly hold that this misconduct has
to be seriously viewed.
51. The decisions relied upon by the learned counsel for the
petitioner do not apply to the facts of the present case. Also
these decisions run contrary to the above decision of the
Supreme Court. We have, as we have already observed above,
the findings of the authorities have not been rebutted. We
have concluded that the petitioner was negligent in
discharging its obligation under the Regulations and
therefore, the decisions relied upon are not applicable and are
distinguishable on facts and more so in the present case.
52. The authorities appointed under the Act are the best
judges based on ground reality to revoke the license and
unless it shocks the conscience of the Court or it is so perverse
that a reasonable person could not have imposed such a
punishment, the Court will not exercise its equity jurisdiction.
53. In view of the above, the Rule is discharged, and the
petition is dismissed. Notice of motion, consequently, does not
survive.
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