TMI Blog2012 (5) TMI 275X X X X Extracts X X X X X X X X Extracts X X X X ..... or it is desirable for the Tribunal to set aside the impugned suspension order. - Decided against CHA. - C/383/2011 - - - Dated:- 30-4-2012 - Dr. Chittaranjan Satapathy, J. Shri Hari Radhakrishnan, Advocate For the Appellants Shri T.H.Rao, SDR For the Respondent Heard both sides. Shri Hari Radhakrishnan, learned advocate appearing for the appellants has submitted as under :- (1) M/s. Maharaja Cargo, is licensed CHA, having CHA licence No.R277/CHA, which is valid upto 21/6/2015. The Commissioner has, vide his order dated 17/10/2011, suspended the CHA licence of M/s. Maharaja Cargo under Regulation 20 (2) of the CHALR, 2004. The reason for suspension as stated in the order is that M/s, Lubecon Petroproducts, whose bills of entry were filed by M/s. Maharaja Cargo were found to be misdeclared. Against the declared goods fuel oil and rubber processing oil, the imported goods on chemical analysis were alleged to be base oil and kerosene oil admixed with low boiling petroleum hydrocarbon solvent. A case has been registered by the DRI who conducted investigation in the matter. It is stated in the impugned order that M/s. Maharaja Cargo failed to obtain statutory au ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctioning as a licenced CHA without any default in discharging their duties makes it clear that it was not in the mind of the Department to prevent the Petitioner from functioning as licenced CHA. Had it been necessary to take immediate action it should have been done at the latest in May/June of 2011. The fact that no such action was taken renders the order of suspension now passed invalid and contrary to the provisions. (3) The Division Bench of the High Court of Bombay in the case of Babaji Shivram Clearing Carriers Pvt. Ltd. Vs. Union of India, reported in 2011(269) ELT 222 (Born.), [Page 70 of the appeal memorandum] in a case involving similar facts, has held as follows: 9. Apart from the above suspension of a CHA licence under Regulation 2 0(2) of the 2004 Regulation can be ordered where immediate action is necessary. In the present case, the customs authorities in the middle of January, 2011 were aware of the fact that the documents submitted by the petitioners were fabricated, however the impugned order has been passed belatedly on 28-3-2011... 11. In these circumstances, in our opinion, it is a fit case to revoke the suspension of licence and permit the custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in 1992 (59) ELT 293 Tribunal - the Tribunal quoted the Law Lexicon by Justice T.P. Mukherjee as follows: The words forthwith and immediately have the same meaning. They are stronger than the expression within a reasonable time , and imply prompt, vigorous action without any delay, and whether there has been any such action is a question of fact having regard to the circumstances of the particular case. A similar meaning has been given in Wharton s Law Lexicon . (iii) Venus Shipping Agencies Vs Commissioner of Customs, Chennai, as reported in 2009 (237) ELT 549 In this case the licence was suspended after nearly three months form the date of filing of second shipping bill. No SCN for suspending or revoking the licence was issued to the CHA. The Chennai Bench held that licence issued to the CHA could be suspended only in cases where immediate action was necessary. (7) The appellant has also a strong case on merits. The appellant has not violated any of the provisions of Regulation 13 of CHALR, 2004. The appellant s submissions on the merits of the case have been put forth at paragraphs G, H, I, J, K and L of the grounds of the appeal memorandum. The Hon ble Tribunal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d are not Rubber Processing Oil and extender Oil, but are actually Base Oil and Kerosene Oil; that his manager Shri.Zahoorul Haq introduced Shri.Sadhasivam who used to represent the importers M/s.Quality Lube Products Pvt Ltd, M/s.Lubecon Products Pvt Ltd, M/s.RK International, M/s.Red Sun Lubricants, M/s.Five Star Lubs, etc., that he and his manager and also the partner of M/s.Neha Shipping Services, used to share the profit mutually in the business of M/s.Neha Shipping Services and M/s.Maharaja Cargo; that he did not possess any authorization from the above said importers; that on good faith he had accepted the documents received from Shri.Zahoorul Haq and process for Customs Clearance. They have also agreed that as CHA they were not aware of exact import consignment of the importer. (3) The authorization produced during the hearing is obtained by the CHA subsequent to the initiation of the investigations, as the same were not produced by them when called for during the recording of the statement of Shri.S.Jayagopal, Power of Attorney and Managing Partner of the CHA. Clearly this is an afterthought to cover up the admitted lapse on part of the CHA for not taking due authoriza ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tness of IEC number identity of his client and genuineness of clients address. Hence the above cited case law squarely applicable to this case also. (8) In the case of CC C.EX, Hyderabad Vs HB Cargo Services reported in 2011 (268) ELT 448 (AP) Hon ble Andhra Pradesh High Court also relied upon the above citation in the case of CHA involvement in export fraud and held that CHA was liable to maximum penalty of revocation of their licence. Accordingly, Hon ble Andhra Pradesh High Court allowed department appeal and set aside Tribunal order passed by Bangalore Bench. (9) DRI report dated 28.09.2011 which was received in Chennai, Custom House on 03.10.2011is also filed herewith. (10) Based on specific Intelligence DRI had investigated the import of Kerosene-admixed with low boiling petroleum Hydrocarbon solvent Mineral Turpentine Oil in the guise of Fuel oil. The last statement from Shri.Mohamed Azam Director of M/s.Al Zaharo Petro Chemicals LLC UAE was recorded by DRI on 24.08.2011. After completion of investigation DRI has issued show cause notice to the importers and various other parties involved in this case including CHA on 16.09.2011. On completion of full investiga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Board to make Regulations and the Regulations so made have statutory force. The instructions issued over and above the Regulations cannot be put on the same footing as statutory regulations nor would it be proper for the Tribunal to grant relief treating the instructions to be statutory Regulations which they are not. 4. As such, when the impugned suspension order has been issued within the time limit of 15 days prescribed under the Regulation, the required post-decisional hearing has also been granted by the Commissioner on 28.10.2011, and necessary order for continuing the order of suspension has been passed on 11.11.2011, it is not legally possible nor it is desirable for the Tribunal to set aside the impugned suspension order. Besides, the action to suspend the CHA licence is only a preliminary and interim measure. Subsequently, the authorities are required to hold an enquiry and decide whether any action is required to be taken against the appellants. This is not a stage for the Tribunal to pre-judge the issue and influence the enquiry and subsequent proceedings. Once the final order is passed, the appellants will have ample opportunity to approach the Tribunal, if they ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
