TMI Blog2009 (7) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... ignatures of the Excise/Customs authorities, signatures of the company authority etc. were forged. 3. The Commissioner (General) was informed about the conduct of the CHA vide letter dated 17-7-08 and on examination of the issue, the Commissioner came to the conclusion that the CHA has failed to discharge his obligations as a Customs 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 23/25-7-08. 4. The Ld. Advocate for the appellant submitted that the order of the Commissioner suspending the license was unwarranted and suffered from serious infirmities as under: 4.1 The Ld advocate for the appellant mainly contests the order on the ground of delay. He relied upon the following judgements of the Hon ble Bombay High Court in the case Commissioner of Customs v. National Shipping Agency as reported in 2008 (226) E.L.T. 46 (Bom.) and in the case of Commissioner of Customs (General) v. Burieigh International as reported in 2008 (226) E.L.T. 49 (Bom.), wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that there was no delay. He submitted that the moot point to be seen is as to 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 4 years cannot be considered fatal to the immediate suspension of the license. 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. 5.2 The Ld. JDR stated that the Commissioner, on receipt of the information about the misconduct of the CHA, has applied his mind and suspended the license within 7 days of the receipt of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Ld JDR also submitted that the Hon ble High Court of Delhi judgment as cited supra has also come to a conclusion that the CHA s license can be suspended based on the confession 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. The L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e name, address and other details of the said M/s. APW President Systems Ltd., Pune as well as the signatures of the excise officers were used by the noticees to forge the export documents, which were signed by the Appellant in the capacity of the CHA. 5.4 The JDR also stated that in terms of the regulations, there is no need of any show cause notice or personal hearing to the CHA before suspension of his license provided the disciplinary authority i.e. Commissioner of Customs (G) finds it to be a fit case for immediate action pending in contemplation of an enquiry. He has stated that there are catena of judgements of the Hon ble High Courts and the Tribunal, which have underlined this fact. The Hon ble Bombay High Court, in the case of Commissioner of Customs (G), Mumbai v. Raj Clearing Agency as reported in 2006 (199) E.L.T. 602 (Bom.) has held in a question of law raised whether it is mandatory that in all cases of suspension, Regulation 22(1) need to be followed. The relevant part of Para 3 is reproduced hereunder : We make it clear that the observations of the CESTAT that in all cases of suspension the procedure under Regulation 22(1) ought to have been followed in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fence, there is no reason to set aside the suspension order. 6. We have carefully considered the rival submissions made by both sides and perused the records. 6.1 The appellant s has a grievance on the ground of delay. The appellant has submitted the decisions of the Hon ble High Court of Bombay in the cases Commissioner of Customs v. National Shipping Agency as reported in 2008 (226) E.L.T. 46 (Bom.) and in the case of Commissioner of Customs (General) v. Burieigh International as reported in 2008 (226) E.L.T. 49 (Bom.) where the decisions of the Tribunal revoking the suspension were upheld. The appellant has also relied upon the decision of the Tribunal in the case of International Shipping Agency v. Commissioner of Customs (General), Mumbai as reported in 2006 (196) E.L.T. 439 (Tri.-Mumbai). The Ld. DR, on the other hand, has relied on the judgements of the Hon ble Delhi High Court in the case of Jasjeet Singh Marwaha v. Union of India and others as reported in 2009 (239) E.L.T. 407 (Del.) = 2009-TIOL-87-HC-DEL-CUS., and the Hon ble Calcutta High Court decision in the case of Orient Clearing Forwarding Agency v. Union of India - 2001 (136) E.L.T. 3 (Cal.) to counter the sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s imported as per the bills of entry alone. It was clarified that the word immediate cannot stop the authority concerned from taking steps during the pendency of the enquiry because the time has not stopped from running. 6.5 We respectfully hold that the judgements on points of law of any Hon ble High Court on a Central legislation will have to be given precedence for arriving at the rationales compared to the decisions, where there is no question of law discussed. 6.6 We find that in the present case, on intimation by a letter dated 17-7-08 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 License and has suspended the operation of the CHA License under Regulation 20(2) of the CHALR, 2004 vide order dated 23/25-7-08 i.e. within 7 days of receipt of the intimation. 6.7 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. 6.8 The JDR has brought out the role of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essary, the Commissioner of Customs is fully empowered to suspend the license 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 judgement of the Bombay High Court and decided that grant of personal hearing is not mandatory in all cases. We rely on the above said judgements to hold that the grant of personal hearing and issue of notice is not mandatory and will not be violative of the principles of natural justice in the cases of suspension, where the disciplinary authority i.e. Commissioner of Customs finds it to be a fit case for immediate action, when an enquiry is pending or contemplated. 6.11 The party has pleaded hardship as they have been out of business for the last one year and it is a question of livelihood of many people dependent on the CHA firm. But we are unable to consider this plea in the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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