TMI Blog2013 (11) TMI 1045X X X X Extracts X X X X X X X X Extracts X X X X ..... st such agent is pending or contemplated. Thereafter, the Commissioner of Customs, in terms of Regulation 20(3) after hearing the CHA may pass such order either revoking the suspension or continuing it. In the present cases, by the impugned orders all dated 23.5.2012 issued under Regulation 20(3), the Commissioner of Customs directed continuation of suspension. Commissioner of Customs upon receipt of the reply to notice issued under sub-Regulation (1) of Regulation 22, would direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs to inquire The learned Advocate rightly submitted that sub-Regulation (2) of Regulation 22 is linked with sub-Regulation (1) of Regulation 22 - investigation to unearth evidence required to issue SCN and inquiry as envisaged in Regulation 22(1) are two distinct processes. Investigation is to be done by Revenue using its powers to unearth documents and to record statements which process apparently has been done in this case substantially even before the suspension order was passed and investigating authority had given report and on that basis suspension order was passed. Now, the next stage is the enquiry as envisaged in Regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned orders shall be kept in abeyance till disposal of the matter. Revenue filed appeal before the Hon ble Division Bench of the High Court. By judgment dated 4.1.2013, the Hon ble Division Bench directed the appellants to file appeals before this Tribunal under Section 129A(1) of the Customs Act, 1962 within a period of two weeks from the date of receipt of the order. 3.1 He submits that despite the direction of the Hon ble Single Judge of the Hon ble High Court by order dated 2.7.2012 the authorities had not initiated inquiry proceedings under Regulation 22. He further submits that the Hon ble High Court directed to follow the inquiry under Regulation 22(2) of the CHALR, 2004 which is linked with sub-Regulation (1) of Regulation 22 insofar as requirement of issue of notice in writing to the CHAs within 90 days from the date of receipt of the offence report by the Commissioner of Customs. It is stated that in the present case no notice was issued till date, despite the request of the appellants. 3.2 It is submitted that the adjudicating authority passed the impugned orders without considering the facts of the case in proper manner, insofar as Regulation 20(2) would apply in a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CHALR would apply in respect of suspension of licence of CHA in appropriate cases where immediate action is necessary and where an enquiry against such agent is pending or contemplated. Thereafter, the Commissioner of Customs, in terms of Regulation 20(3) after hearing the CHA may pass such order either revoking the suspension or continuing it. In the present cases, by the impugned orders all dated 23.5.2012 issued under Regulation 20(3), the Commissioner of Customs directed continuation of suspension. The Hon ble Single Judge of the Madras High Court by judgment dated 2.7.2012 directed the authorities to follow the procedure under Regulation 22(2) of the CHALR, 2004. It appears from the judgment dated 4.1.2013 of the Hon ble Division Bench of the High Court in Revenues appeal, the learned counsel for the Revenue submitted that as against the impugned order dated 23.5.2012, a statutory alternative remedy of appeal is provided under Section 129A(1) of the Customs Act, 1962. In this context, the Division Bench of the High Court directed the appellants to file appeal before the Tribunal. 6. It is significant to note that both the suspension orders dated 25.4.2012 and 23.5.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the Hon ble Single Judge of the High Court vide order dated 2.7.2012 to follow the procedure under Regulation under 22(2), no notice was issued till date. 8. In the case of Fast Track International (supra), as relied upon by the learned Authorized Representative for the Revenue, the Tribunal observed that a show-cause notice under Rule 22 is required to be issued. In a recent decision, this Tribunal in the case of Manjunatha Shipping Services Ltd. Vs. Commissioner of Customs (Import), Chennai vide Final Order No. 40461/2013 dated 10.10.2013 observed that show-cause notice is necessary for the purpose of inquiry under Regulation 22 of the CHALR, 2004. The relevant portion of the order in the case of Manjunatha Shipping Services Ltd. (supra) are reproduced below:- 9. Regulation 22(1) is applicable for issuing both suspension order and revocation order. However Regulation 20(2) authorizes the Commissioner of Customs to suspend the licence of a CHA in emergent situations without following the procedure under Regulation 22(1). It is very obvious that immediate suspension of license is permitted only when an enquiry is pending is contemplated. The non obstante claus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Hon. Madras High Court in the case of CC Vs. Ganesh Shipping Agency-2009 (245) ELT 120 (Mad). So we set aside the impugned order and allow the appeal. 9. The Hon ble Delhi High Court in the case of Falcon Air Cargo (supra) observed that suspension would obviously meant that licence would be inoperative for a particular period and the order of revocation would mean that the licence is totally inoperative in future. The Hon ble High Court further observed that the effect of the action vis-`-vis right to carry on trade or profession in the background of Article 19(I)(g) of the Constitution has to be noted in the case of suspension of licence. We find that the Tribunal in the case of Manjunatha Shipping Services (supra), set aside the suspension order, where no notice was issued even after two years of suspension order. Hence it is depending upon the facts and circumstances of each case. In the present case, suspension orders were issued on 25.4.2012 under Regulation 20(2) and despite the order dated 2.7.2012 of the Hon ble Single Judge of the High Court, no notice was issued till date. In our considered view, the decision of the Tribunal in the case of Manjunatha Shipping Servic ..... X X X X Extracts X X X X X X X X Extracts X X X X
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