9911796707
TMI Blog2009 (12) TMI 245X X X X Extracts X X X X X X X X Extracts X X X X ..... anwhile, the 1984 Regulations have been superseded by the 2004 Regulations, which came into force with effect from 23rd February, 2004. 4. According to the petitioners, the petitioners in ordinary course of business handled the export consignments of one M/s. Jai Bishnu Niketan Pvt. Ltd., a private limited company having its registered office at 132/1 Mahatma Gandhi Road, Kolkata - 700007. 5. It is alleged that on the basis of export documents, that is, invoice, packing list and other documents sent by the exporter, the petitioners prepared five shipping bills for export of synthetic fabrics to Bangladesh. Of the five consignments, one was sought to be exported subject to submission of Letter of Credit and others on "Delivery Against Payment Basis". 6. Similarly, the petitioners handled the export consignments of one M/s. A.S. Traders represented by Sri Ashok Kumar Das. The petitioners prepared four shipping bills on the basis of documents made over to the petitioners. Of the four consignments, one was to be exported upon submission of Letter of Credit and the others on Delivery Against Payment Basis. 7. According to the petitioners, the consignments of both the exporters, M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from entities other than the foreign buyers/consignees and from destinations other than the importing country and are found to be in no way related to the exports made to Bangladesh under DA. Against one such exporter, remittances against DA has not been made so far as confirmed by negotiating bank who also failed to correlate the export proceeds, wherever received, with individual export consignments. From the above, it appears that the CHA M/s. Ocean Shipping & Clearing Agency in connivance with the exporter is availing DEPB benefits by way of gross overvaluing their export consignments and have thereby violated the provisions of Regulations 13(a), 13(d), 13(c), 13(j) and 13(k) of the CHALR'2004. And whereas an inquiry is contemplated against the said CHA under Regulation 22 of the CHALR'2004 in the above matter, and after examining the aforesaid matter, it appears the continuance of transacting business by the CHA M/s. Ocean Shipping & Clearing Agency is prejudicial to the interest of Revenue and immediate action is warranted to prevent further misuse of the CHA licence." 13. For the sake of convenience Regulations 20, 21 & 22 of the 2004 Regulations are extracted herein belo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice referred to in sub-regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs to inquire into the grounds which are not admitted by the Customs House Agent. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs House Agent, for the purpose of ascertaining the correct position. (4) The Customs House Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings. (6) The C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of licence "where immediate action is necessary", is under Regulation 20 which, as title indicates, deals with 'Suspension or revocation of licence". Though it starts with a non-obstante clause and is an independent provision, Regulation 20(2) does not lay down the procedure to be followed by the authority following immediate suspension. Therefore, as no procedure has been enumerated following immediate suspension, answer, if any, has to be found from the Regulations itself. Regulation 22 which deals with the "procedure for suspending or revoking licence under Regulation 20", provides the answer. Regulation 22(1) provides the procedure for suspending the licence of an agent. Hence, as Regulation 20(2) does not lay down the follow up procedure, the procedure under Regulation 22 is to be followed. Regulation 22 postulates "The Commissioner of Customs shall issue a notice in writing to the Customs Agent slating the grounds on which it is proposed to suspend". "The licence and requiring the said Customs House Agent to submit, within such time as may be specified in the notice, not less than forty five days, to the Deputy Commissioner of Customs or Assistant Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wing grounds, namely : (d) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under regulation 10; (e) failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else; (f) any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or anywhere else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station. (2) Notwithstanding anything contained in sub-regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated." 21. It is true as argued on behalf of the petitioner, the judgment of the Division Bench in Union of India v. Jena & Company (supra) and the judgment of the Single Bench in Orient Clearing and Forwarding Agency v. Union of India (supra) cited on behalf of the respondents pertain to the 1984 Regulations which have since been repealed. Regulation 20(2) of the 2004 Regulations, is, h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
