P L D 1967 Dacca 371 (PLP)

SALAHUDDIN AHMED, J.‑The petitioner who is a Clearing and Forwarding Agent of goods has obtained this Rule nisi upon the respondent to show cause why certain order and proceedings, namely, the order of suspension dated the 30‑4‑65 and the proceedings leading up to the passing of the impugned order dated the 16‑10‑65 should not be declared to have been passed without any lawful authority and are of no legal effect. The facts pertinent for the disposal of Lire Rule are as follows: 'The petitioner who claim himself to be the senior-most Clearing Agent engaged in the business of clearing and forwarding of goods at Chittagong port has been carrying on business under a licence valid till the 31‑12‑65 issued to him under the Sea Customs Act. On or about the 3‑5‑65 the petitioner was served with a copy of an order dated the 30‑4‑65 suspending with immediate effect the petitioner's licence. The petitioner therefore, approached this Court and obtained the Rule nisi on the 21‑6‑65 calling upon the respondent show cause why the said order of suspension should not be declared to have been made without lawful authority. The order issuing the Rule nisi also directed the stay of the operation of the said suspension order. This Rule was, however, discharged. In the meantime during the pendency of the aforesaid Rule nisi the respondent by its order dated the 25‑6‑65 served a show‑cause notice upon the petitioner wherein it was alleged that the petitioner had forged Customs seal and signatures on the bills of entry and thereby obtained delivery of goods thereon causing a loss to the Government in duty and sales tax to the extent of Rs. 1,29,299‑12 paisa. In the said show‑cause notice the petitioner was further charged with unsatisfactory conduct and unfaithful behavior and he was called upon to show cause why his licence should not be revoked on ‑those grounds. It appears that the two proceedings were started against the petitioner on the basis of the aforesaid show‑cause notice namely, one relating to the charge of forgery of tire Customs seals and signatures on the Bills of Entry and obtaining delivery of goods thereon, and the other relating to the cancellation of the licence on' the ground of unsatisfactory conduct and unfaithful behaviour. The first proceeding was concluded in favour of the petitioner by the order of the Collector of Customs, Chittagong dated the 14‑10‑

65. In this order the Collector observed thus: "It is true that there is neither any record nor circumstantial evidence to lead to any reasonable conclusion that the proprietor of Messrs B. Rahmah & Co. was in any way concerned in the commission of the above offence in the sense that he had knowledge of such commission. I agree with the lawyer that in such circumstances, it is not possible to inflict any penalty on the client of the lawyer." It must be mentioned here that there is a criminal case pending against certain persons including the employees of the Customs Department charging them with forgery and cheating. Never theless the Collector held the petitioner liable for non‑payment of the duty of the Customs for having cleared the goods on submission of forged Bills of Entry and therefore, ordered the petitioner to pay up the amount within one month from the date of the order. The petitioner approached the Board of Revenue for revision of the order of the Collector of Customs holding him responsible for the non‑payment of the duty to the Customs House and ordering him to pay up the amount. The other proceeding culminated in the passing of an order by the Assistant Collector of Customs dated the 16‑10‑

65. The order is in these terms:‑ "No. S‑12/34‑Lic/Imp/48/2127‑Cus. Custom House Chittagong, The 16th Oct.,'

65. To Messrs B. Rahman, 167, Fringhee Bazar Road, Chittagong. Your appearance through a lawyer and submission made thereof together with written reply to the show‑cause memo has been considered threadbare. Bill of entries were made available to you and your representative Mr. A. K. Das bad seen them although they bear the Custom Seal the amount of duty and sales tax were not actually deposited into the Custom House Treasury. After thorough examination conducted by the Custom House it was revealed that the Customs Seal and signatures axed on the bills of entry were all forged. The case has since been taken up by Pak. Special Police. Your plea that there is no conceivable way to test the genuines of these payments by the clearing Agent and hence your claim that the Clearing Agents is innocent falls through on the ground that at the time of applying for Sircar Licence the Clearing Agent Messrs B. Rahman made an unequivocal declaration that "for all the actions of his sircar he will accept all responsibilities as if they were their own". He also boud himself responsible for any breach of Customs Law and Rules committed in the transaction of his business conducted by the sircar. It is thus apparent that Messrs B. Rahman, Clearing Agent cannot evade the responsibility for action of his sircars, who were his own authorised agents. It has been established beyond doubt that the payments have not been made and the Customs seals on the bills of entry are all forced. Therefore, the responsibility of making good the payment lies squarely on the Clearing Agent Messrs B. Rahman who handled the documents, no matter whether these have been dealt with by the Clearing Agent himself. In the above circumstances either the full payment of Rs. 1,29,299.12 (One Lakh twenty‑nine thousand two hundred ninety‑nine and paisa twelve only) in duty and sales tax, which have not been paid, be paid immediately or the Agency Licence will stand cancelled in the event of failure of payment. Fifteen days time limit is given to exercise the option. You are also informed that your appeal against this order lies with collector. S. M. WALL Asstt. Collector of Customs for Licences." It may be noted that this order was passed a couple of days after the order of the Collector of Customs had been passed acquitting the petitioner of the charge of forgery. It may also be noted that the order dated the 16‑10‑65 of the Assistant Collector of Customs was passed on the hypothesis that the petitioner was responsible for obtaining the delivery of the goods on submission of forged Bills of Entry without actually making any payment in respect of the duty and sales tax. It has been argued before us with reference to the relevant provisions of the Sea Customs Act and the Rules framed there under that the petitioner's licence could only be cancelled on the following grounds mentioned in Rule 19 of the said Rules:‑ (i) breach by the licensee of any provision of these Rules: (ii) negligence, dilatoriness or inefficiency of the licensee in the discharge of his obligations, as such; (iii) unsatisfactory conduct or unfaithful behaviour of the licensee as regards the Custom House or, as the case may be, land customs station regulations or officers or in relation to any person who has entrusted him with any business pertaining to the Custom House or land customs station; (iv) failure of the licensee to comply with any of the condition of the bond executed by him under these rules: The fourth ground does not apply to the case of the petitioner as he did not execute any bond under the Custom House Agents (Licensing) Rules,

197. It has been contended on behalf of the petitioner that the order of the Assistant Collector of Customs dated the 16th October 1965, makes no mention at all of any ground contained in the aforesaid Rule

19. The relevant portion of the order reads thus: "In the above circumstances either the full payment of Rs. 1,29,299.12 (One Lakh twenty‑nine thousand two hundred ninety‑nine and paisa twelve only) in duty and sales tax, which have not been paid, be paid immediately or the Agency Licence will stand cancelled in the event of failure of payment. Fifteen days time limit is given to exercise to option." It seems obvious that this order directing the petitioner to pay up the amount mentioned in the order is the main purpose of the order and this was sought to be enforced by the authority by the,, threat that in the event of failure to pay up the amount, the petitioner's licence would stand cancelled. Neither the Sea Customs Act nor the Rules framed thereunder contemplates any order of this nature. After the passing of the order by the Collector dated the 1‑4‑10‑65 there existed no basis for the issue of the impugned order by the Assistant Collector of Customs dated the 16‑10‑

65. The rules framed under the Sea Customs Act nowhere speaks about the cancellation of the petitioner's licence in the manner it has been done in the impugned order. We are, therefore, of the opinion that this order dated the 16‑10‑65 has been passed without any lawful authority. The Rule is accordingly made absolute. We declare that the order of the Assistant Collector of Customs dated the 16‑10‑65 (Annexure `I' to the petition) has been passed without any lawful authority and is of no legal effect. In the facts and circumstances of the case, however, we leave the parties to bear their own costs. A. M. SAYEM, J.‑I agree. K. B. A. Rule made absolute.