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2009 (8) TMI 673

..... aid down in Regulation 22 of the Customs House Agents Licensing Regulations, 2004? Held that - There can be no doubt that power under Regulation 20(2) has serious civil consequences for a customs house clearing agent, and the principles of natural justice must be complied with. This writ application may be placed before the Hon’ble Chief Justice for assignment to a Division Bench. - 851 of 2009 - 25-8-2009 - Indira Banerjee, J. REPRESENTED BY: Shri Sudhir Meheta, Advocate, for the Petitioner. [Order]. - The Court : The short question in this writ application is whether an order of suspension of a Custom House Agents Licence can be issued without complying with the procedure for revocation of a licence laid down in Regulation 22 of the Customs House Agents Licensing Regulations, 2004. 2. In this writ application the petitioner has challenged Establishment Order No.235/2009 dated August 10, 2009 issued by the Commissioner of Customs (Airport & Administration), Custom House, Kolkata, suspending the operation of the CHA Licence No. F - 5 ( PAN No. AAACF6464C) held by the petitioner No.1, with immediate effect. 3. The petitioner is a Company incorporated under the provisions of the .....

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..... clearing job to the CHA through Shri Indranil Ray, an employee of the CHA. While procuring the clearing job, the CHA did not obtain any authorization. In fact, they cleared two export consignments in the name of the aforesaid exporter without obtaining any authorization. Now, it appears that the said two consignments were also used to smuggle Red-Sanders. The declared exporter and manufacturer of the goods have categorically denied any connection with the above consignments. The Central Excise Officer whose name and stamp was used on the Application for Removal of Excisable Goods for Export (ARE - 1), has also confirmed that the signature appearing on the ARE - 1 were not his. Thus, it appears that the documents presented before the Customs were fake and forged. From the facts of the case and from the statement of Shri Binoy Majumder, Director of M/s. Fairdeal Enterprise Pvt. Ltd., Shri Indranil Roy, Employee of M/s. Fairdeal Enterprise (P) Ltd., Shri Shankar Kumar Mitra, Import-Export Sales Executive of M/s. Swift Freight(I) Pvt. Ltd., Shri Sujit Moitra, Branch Manager of M/s. Swift Freight (I) Pvt. Ltd., it appears that the CHA has failed to properly advise his client to comply .....

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..... ch time as may be specified in the notice, not being less than forty-five 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. (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 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 c .....

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..... aring and Forwarding Pvt. Ltd. (supra) the Court set aside an order of suspension on the ground of non-compliance with the requisites of Regulation 22. In M/s. Hindustan Shipping Agency & Anr (supra) the Court held as follows: Regulation 20(1) deals with revocation of licence and sub regulations (a)(b) and (c) of the Regulations deal with the grounds on which a licence can be revoked. Regulation 20(2) confers power on the Commissioner of Customs to suspend the licence of a Customs House Agent where immediate action is necessary. Interestingly power of suspension 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 th .....

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..... tled that Headings or Titles may be referred in constructing statutory provisions, to resolve ambiguity or doubt. The Headings do not, however have a controlling effect and cannot be used to give a different effect to clear words in a statutory provision. Reference may be made to the judgments of the Supreme Court in CIT -vs- Ahmedbhai Umedbhai reported in AIR 1950 SC 134, Frick India Ltd -versus- Union of India reported in AIR 1990 SC 689, Bharat Damodar Kale -versus- State of A.P., reported in AIR 2003 SC 4563. The same principles of interpretation apply to statutory Regulations. 17. Compliance with the requisites of Regulation 22 has clearly been excluded. When Regulation 20(2) excludes the application of the procedure prescribed by Regulation 22 in case of action under the said Regulation, it is doubtful whether this Court can insist on compliance with the procedure prescribed under Regulation 22. 18. The view taken by this Bench finds support from an order of a Division Bench of Bombay High Court in Commissioner of Customs (General) -Versus- S.A.Dalal & Co., reported in 2008(221) ELT 488 (Bom). However, in that case, it was found on facts that the suspension was not immedi .....

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