TMI Blog2012 (9) TMI 214X X X X Extracts X X X X X X X X Extracts X X X X ..... he impugned Order-in-Original and the same is upheld and the appeal is dismissed - against assessee. - Cus. Appeal No.33/12 - - - Dated:- 23-8-2012 - SHRI S. K. GAULE, DR. D. M. MISRA, JJ. Shri R. K. Chowdhury Shri B . N . Pal, both Advs. for the Appellant (s) Shri S. Chakraborty, Asstt. Commr . (A.R.) for the Department Per Shri S. K. Gaule : Heard both sides. The appellant filed this appeal against the Order-in-Original No. Kol/Cus/Airport/Admn/25/2010 dated 8.12.2010, whereby the ld . Commissioner (Appeals) has confirmed the suspension of CHA license of M/s R. N. Lall Bros. in terms of Regulation 20 (2) of Customs House Agents Licensing Regulations, (CHALR), 2004. 2.1 Briefly stated the facts of the case are that DRI, Regional Unit, Ludhiana, intercepted two import containers pertaining to one M/s Agro Impex, Delhi, containing undeclared goods as Organ Pipe Coral (OPC) in concealment but the goods declared as Sea Shells, were recovered. OPC scientifically known as Tubipora Musica falling under CTH 05080010, are restricted items for import as per Foreign Trade Policy and prohibited under Chapter IVA of Wildlife (Protection) Act, 1972. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen M/s Agro Impex filed two bills of entry mis-declaring the imported goods in order to import OPC in the guise of Sea Shells. The contention is that there are no allegations that the declarations made in the said bills of entry are not corresponding to the documents made over by the said importer. The contention is that there is no allegation that the CHA was guilty of making any mis-declaration. The contention is that there is no allegation that the CHA is concerned with imported goods or had any interest in the said import except the charges for rendering services for filing import documents with bill of entry for clearance of imported goods. The contention is that an incident was brought to the notice by DRI vide their letter dated 8.1.10, the correspondence was duly received by the Kolkata Customs. The Commissioner of Customs, Amritsar, suspended the license of CHA on 5.2.2010 and the suspension at Amritsar is continuing, there had not been any allegation subsequent to 8.1.2010 against the appellant at Kolkata, the Commissioner of Kolkata preferred not to suspend the appellant s license at Kolkata. 3.2 The contention is that CHALR, 2004 underwent amendment and provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the date when the order of suspension is made. The contention is that in the present case, the incident took place in December, 2009, the report of the investigating agency was received by Kolkata Customs from DRI on 8.1.2010 and the order of suspension has been made on 25.10.2012, that too, without any explanation for delay and there being no subsequent incident. 3.8 In support of their contention, they placed reliance on the following decisions cited as under : (i) B.N. thakkar Co. Vs. CC (G), Mumbai :2011 (271) ELT 102 (Tri.-Mumbai) (ii) Babaji Shivram Clearing Carriers Pvt. Ltd. Vs. Union of India : 2011 (269) ELT 222 (Bom.) (iii) K. S. Kannan Coo Vs. Commr . of Customs, Chennai : 2008 (227) ELT 414 (Tri.-Chennai) (iv) Crown Shipping Agency Vs. Commr . of Customs, Mumbai : 2004 (178) ELT 885(Tri.-Mumbai) (v) P. P. Dutta Vs. Commr . of Customs, New Delhi : 2001 (136) ELT 1042 (T) (vi) Krishan Kumar Sharma Vs. Commr . of Customs, New Delhi : 2000 ( 122) ELT 581(Tribunal) (vii) Fairdeal Enterprises (P) Ltd. Vs. CC (Airport Administration) : 2010 (256) ELT 545 (Cal.) 4.1 The contention of the Department is that the appellants were d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ternational Vs. Commissioner of Customs, Chennai reported in 2011 (266) ELT 183 (Tri.-Chennai). 4.6 The contention of the Department is that the appellant is a habitual offender vide F.No.S-45-01/1979 Estt. (Pt.) dated 11.4.2008. The contention is that the notice for suspension of license was issued for offences committed by their employee and power of attorney-holders at the Mumbai Customs House. The contention is that the said notice was set aside by the Hon ble High Court of Calcutta vide its Order dated 23.3.2009. 4.7 The contention is that after the issuance of the show-cause notice issued vide F.No.S 45-01/1979 Estt. (Pt.) dated 21.2.2012 under Regulation 22 of the CHALR, 2004, the CHA firm did not file any reply before the Inquiry Officer till date and also did not respond to the personal hearing dates fixed in this regard on 19.06.2012, 22.06.2012 28.06.2012 as reported by the Inquiry Officer in this regard. 5.1 We have carefully considered the submissions and perused the records. Undisputedly, the license was suspended vide Establishment Order No.271/2010 dated 25.10.2010. The ld. Commissioner while exercising his power vested in him under Regulation 20 (2) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 122) E.L.T. 678 (Mad.), the CHA licence is given on the basis of confidence built by the Customs House Agent. When an agent breaches the trust reposed in him by the Department, the Department would be well justified in refusing a CHA to continue work in the Custom House. This decision of the Honourable Madras High Court has been maintained by the Honourable Supreme Court vide Arvind C. Bhagat v. Commissioner - 2001 (129) E.L.T. A191 (S.C)]. 5.4 The Hon ble Calcutta High Court in the case of Union of India v. Shashi Deo Jha - 1999 (113) E.L.T. 385 (Cal.), reasons as regards expediency of suspending the licence immediately are required to be recorded by the authority ordering suspension. In this case we find that the order of suspension and the order of continuance of suspension, both record such reasons. Moreover, by giving post-decisional hearing and passing a speaking order, the jurisdictional Commissioner has also followed the principles of natural justice. In the cited case, the Hon ble Calcutta High Court has also expressed the view that once the court exercising power of judicial review is satisfied that an order does not suffer from total non-application of mind nor it is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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