TMI Blog2014 (11) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... now - Decided in favour of appellant. - Appeal Nos.C/40446/2013 & C/40447/2013 - FINAL ORDER No.40533-40534/2014 - Dated:- 25-6-2014 - Shri P.K. Das and Shri R. Periasami, JJ. For the Appellant : Shri A.K. Jayaraj, Advocate For the Respondent: Shri C. Dhanasekaran, Commissioner (AR) JUDGEMENT Per P.K. Das; 1. Common issue involved in these appeals and therefore both are taken up together for disposal. 2. The appellant is a holder of Regular Custom House Agents License issued under the provisions of Custom House Agents Licensing Regulations (CHALR), 2004. By order dt. 21.1.2013, the Commissioner of Customs (Imports), Chennai in exercise of powers conferred under the provisions of Regulation 20 (2) of CHALR 2004 suspended the CHA license with immediate effect until further orders. Thereafter by order dt.15.2.2013, the Commissioner of Customs (Imports) in exercise of powers conferred under the provisions of Regulation 20 (3) of CHALR 2004 ordered continuation of suspension of license of the CHA. The appellants filed the present appeals against both the orders. 3. The Ld. Advocate on behalf of the appellant submits that offence report was furnished to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the appellant is a Customs House Agent under the CHALR, 2004. They filed Bill of Entry No.5970001 dt. 10.2.2012 on behalf of M/s. Shini Knitwear, Tirupur for clearance of the goods declared as Snap Fasteners, Sliders and Elastic Tapes. It was found that the goods were misdeclared in order to evade anti-dumping duty. It has been alleged that the appellant had filed Bill of Entry in the name of M/s.Shini Knitwear without verifying the antecedents, correctness and identity of their clients. The Commissioner of Customs (Imports) issued the suspension order under Regulation 20 (2) immediately on the basis of SIB report dt. 20.12.2012. Subsequently, by order dt. 15.2.2013 issued under Regulation 20 (3) of the said Regulation, it was ordered for confirmation of suspension order. 6. We find that after the said orders, the appellant received a copy of the letter dt. 14.3.2013 issued by the Asst. Commissioner of Customs (CHA) addressed to the Deputy Commissioner of Customs (Group-4), intimating the nomination of the Enquiry Officer. The relevant portion of the said letter dt. 14.3.2013 is reproduced below :- The Commissioner of Customs (Imports) has appointed you as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 22 reads as under : REGULATION22.?PROCEDURE FOR SUSPENDING OR REVOKING LICENCE UNDER REGULATION 20. (1) The Commissioner of Customs shall issue a notice in writing to the Customs House Agent [within ninety days from the date of receipt of offence report, stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said Customs House Agent to submit within thirty days], to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs House Agent desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. Provided that the procedure prescribed in regulation 22 shall not apply in respect of the provisions contained in sub-regulation (2) to regulation 20. (2) The Commissioner of Customs may, on receipt of the written statement from the Customs House Agent, or where no such statement has been received within the time-limit specified in the notice referred to in sub-regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs to inquire int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Regulation, observed as under :- 9. Regulation 22(1) is applicable for issuing both suspension order and revocation order. However Regulation 20(2) authorizes the Commissioner of Customs to suspend the licence of a CHA in emergent situations without following the procedure under Regulation 22(1). It is very obvious that immediate suspension of license is permitted only when an enquiry is pending is contemplated. The non obstante clause Regulation 20(2) makes an exception only in the matter of suspension and not in the matter of revocation. So, it is implied that such inquiry has to be completed, within the time frame prescribed in various sub-regulations of Regulation 22 and a final view in the matter of revocation of license is to be taken. 10. It may be noted that investigation to unearth evidence required to issue SCN and inquiry as envisaged in Regulation 22(1) are two distinct processes. Investigation is to be done by Revenue using its powers to unearth documents and to record statements which process apparently has been done in this case substantially even before the suspension order was passed and investigating authority had g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur earlier letter in F.No.R-289/CH dated 11.12.2013, and your reply dated 20.12.2013 wherein you have submitted that you have not received any show cause notice for the allegation. The same was informed to the CBR section wherein they have replied vide their letter dated 27.03.2014 that the Suspension Order may be treated as Suspension order cum Show Cause Notice and the enquiry may be proceeded with the allegations against the Customs Broker. Therefore, you are requested to reply to the undersigned within 7 days from the receipt of this letter and you may also inform as to whether you wish to be heard in person before finalising the case. 10. The Ld. A.R submits that Regulation 22 (1) would not applicable in the case of suspension of license under Regulation 20 of the said Regulation. It is seen that the Tribunal in the case of Manjunath Shipping Services (supra) had observed that after suspension order under Regulation 20 (2) / 20 (3) of the said Regulation, it would be followed by the enquiry proceeding under Regulation 22 of the said Regulation. We find that Regulation 22 (1) clearly specified the time frame of ninety days to issue show cause notice from the date of rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the offence report, the only course to be adopted by the first respondent is to issue a show cause notice within 90 days to the petitioner. Unfortunately in the present case, although 41 days had lapsed till the filing of the writ petition, the first respondent has not come forward to issue the show case notice to comply with the mandatory conditions adumbrated under Regulation 22(1) of the Regulations. Therefore, in the present case, as rightly indicated by the learned counsel for the petitioner with the help of the order passed by this Court in W.P. (MD) No. 16351 of 2012 dated 4.1.2013, where this Court was inclined to quash a similar proceeding finding fault with the respondent that there was a delay of seven days in issuing the show cause notice, this Court has no hesitation to interfere with the impugned proceedings, for the simple reason that in this case, there was no show cause notice issued till now. Therefore, for the reasons mentioned above, the writ petitioner is entitled to succeed. Accordingly, the impugned proceedings are set aside and the writ petition is allowed. Consequently, M.P.No, 1 2 of 2013 are closed. No costs. 11. In the present case, it is appare ..... X X X X Extracts X X X X X X X X Extracts X X X X
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