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TMI Blog2009 (7) TMI 411X X X X Extracts X X X X X X X X Extracts X X X X ..... tted that they had cleared the consignments on behalf of the exporters, though they had never met the actual IEC holders or verified their genuineness at the time of filing the Shipping Bills. 3. The Commissioner (General) was informed about the conduct of the CHA vide letter dated 28-7-2008 and on examination of the issue, the Commissioner came to the conclusion that the CHA has failed to discharge his obligations as a Custom House Agent under CHA Licensing Regulations, 2004, and pending enquiry under Regulation 22, an immediate action was required to prevent further misuse of the CHA licence and he has suspended the operation of the CHA licence under Regulation 20(2) of the CHALR, 2004 vide order dated 30-7-2008. 4. The ld. Advocate for the appellant submitted that the order of the Commissioner suspending the licence was unwarranted and suffered from serious infirmities as under: 4.1 The order had been passed directly in violation of the procedure prescribed vide Regulation 22 for suspending the CHA license under Regulation 20 inasmuch as he was not given a copy of the report of the DRI, not given any hearing and hence was violative of the principles of natural justice. 4.2 T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibed in the Regulations in so far as they are relevant to the clearance of the goods through Customs. The successful persons are granted a non-transferable licence allowing them to work as CHAs in the Customs stations all over India after necessary procedural formalities are completed. Further, every CHA is supposed to strictly abide by the roles and responsibilities cast on them by law. The sub-letting and allowing unauthorised persons to attend clearance work is strictly frowned upon by the law. He also stated that the regulations also stipulate that the Customs House Agent shall exercise such supervision as may be necessary to ensure the proper conduct of any such employees in the transaction of business as agent and be held responsible for all acts or omissions of his employees in regard to their employment. 5.2 He submits that this rigorous selection process as envisaged in the Act and the Regulations and the clearly defined obligations cast on the CHA are the main mechanisms to see that only genuine people enter and remain in this field, which is very important as far as the Customs administration, Central Government revenue collection and economic and national security of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made under Section 108 of the Act provided it is voluntary and the statement is truthful and is not the result of such inducement, threat or promise as mentioned in Section 24 of the Indian Evidence Act, 1872. 7.3 In so far as question no. 3 is concerned, in the given circumstances, we are of the view that there was no inordinate delay on the part of the respondents is suspending the licence of the CHA if one were to account for the fact the order of the adjudication was passed on 20-10-2006 and also the subsequent events which lead to the suspension of licence by an order dated 29-1-2007. 7.4 In so far as question no. 4 is concerned, we are of the view that since a CHA acts on behalf of the importer, it is not only his obligation to ensure that the entries made in the bill of entry are correct but also that a true and correct declaration of value and description of goods is made, and in the event of any infraction such as mis-declaration, he can be penalized under the Regulation 20 of CHALR, 2004 if it results in a misconduct which is of the nature which renders him unfit to transact the business of a CHA, at the Customs Station. 5.4 The JDR also stated that in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o when the Commissioner, who is a disciplinary authority and is different from the investigating agency booking the case, has been informed and whether there is a delay on his side. He submitted that in the case of Jasjeet Singh Marwaha v. Union of India and others (cited supra), the High Court has held that even a delay of 4½ years cannot be considered fatal to the immediate suspension of the licence. He invited our attention to the Calcutta High Court decision in the case of Orient Clearing & Forwarding Agency v. Union of India - 2001 (136) E.L.T. 3 (Cal.), wherein the scope of words "immediate action" under Regulation 21(2) was considered and it was held that "immediate" does not mean as and when the consignment was imported as per the bills of entry alone. Word "immediate" cannot stop the authority concerned from taking steps during the pendency of the enquiry because the time has not stopped from running. The DR stated that the Commissioner, on receipt of the information about the misconduct of the CHA, has applied his mind and suspended the license within three days of the receipt of the letter. The Commissioner's order does not suffer from any infirmity on that count and a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by both sides and perused the records. 6.1 The appellant's main contention is regarding the violation of the procedure prescribed vide Regulation 22 for suspending the CHA licence under Regulation 20. On a plain reading of the regulations, we do not find any requirement prescribed to that effect. We also find that in the case of Commissioner of Customs (G), Mumbai v. Raj Clearing Agency (cited supra), the Hon'ble Bombay High Court, in a question of law raised whether it is mandatory that Regulation 22(1) needs to be followed in all cases of suspension, has held that it is not mandatory that in all cases of suspension, Regulation 22(1) ought to be followed and that in cases where immediate action is necessary, the Commissioner of Customs is fully empowered to suspend the licence where an enquiry against such an agent is pending or contemplated as per Regulation 20(2). Further, in the case of A.R. Marines Pvt. Ltd. v. Commissioner of Customs (General), Mumbai (cited supra), the Tribunal has followed the above said judgment of the Bombay High Court and decided that grant of personal hearing is not mandatory in all cases. We rely on the above said judgments to hold that the grant of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... points of law of any Hon'ble High Court on a Central legislation will have to be given precedence for arriving at the rationale compared to the decisions, where there is no question of law discussed. We find that in the present case, on intimation by a letter dated 28-7-2008 from DRI after examining the issue, the Commissioner has come to a conclusion that the CHA has failed to discharge his obligation as Customs House Agent under CHALR, 2004 and pending enquiry under Regulation 22, an immediate action was required to prevent further misuse of the CHA licence and has suspended the operation of the CHA licence under Regulation 20(2) of the CHALR, 2004 vide order dated 30-7-2008 i.e. within 3 days of receipt of the intimation. In view of the facts above and the legal position brought to our notice, we hold that there was no delay on the part of the respondent. 6.3 The learned JDR has elaborately submitted the importance of CHA in Customs matters and the roles and responsibilities of a CHA within the ambit of the Customs Act, 1962. There is no second opinion to the fact that the CHA is a very important component in the whole system of Customs administration, which has a major beari ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... true and correct declaration of value and description of goods is made, and in the event of any infraction such as mis-declaration, he can be penalised under the Regulation 20 of CHALR, 2007 if it results in a misconduct which is of the nature which renders him unfit to transact the business of a CHA, at the Customs Station. We find that the allegations raised against the CHA are grave enough to initiate action under CHALR, 2004. 6.6 The appellant has pleaded hardship as they have been out of business for the last 11 months and it is a question of livelihood of many people dependent on the CHA firm. We are unable to consider this plea in light of the decision of the Hon'ble High Court of Bombay in the case of Commissioner of Customs v. Worldwide Cargo Movers, the relevant portion of which read as under:- "Similarly, when one comes to the disciplinary measures, one must not lose sight of the fact that the appellant - Commissioner of Customs is responsible for happenings in the Customs area and for the discipline to be maintained over there. If he takes a decision necessary for that purpose, the Tribunal is not expected to interfere on the basis of its own notions of the difficulti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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