TMI Blog2014 (6) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... er – under Regulation 22(2) to proceed further. In this case, no such order was made; the Inquiry Officer’s report is premised almost entirely on the investigation report and its allegations - The insistence upon giving an opportunity of hearing to a CHA whose license is suspended, is not an idle formality which sadly the impugned order assumes it to be. The impugned inquiry report, therefore, cannot be sustained - Matter remanded back - Decided in favour of assessee. - W.P.(C) 2595/2014, C.M. No. 5384/2014 & 5385/2014 - - - Dated:- 12-5-2014 - S. Ravindra Bhat And Vibhu Bakhru,JJ. For the Petitioner : Mr. Rohit Kapur, Advocate. For the Respondents : Ms. Sonia Sharma, Sr. Standing Counsel with Mr. Rattan Deep, Advocate, for Resp. No.1. ORDER Mr. Justice S. Ravindra Bhat (Open Court) 1. In these writ proceedings under Article 226 of the Constitution of India, the petitioner, a Customs House Agent ( the petitioner ), challenges the action of the respondent, the inquiry officer under Regulation 22 of the Customs House Agent Licensing Regulations, 2004 ( CHALR ) in respect of a show cause notice dated 30-1-2014 issued by the Commissioner of Customs seeking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the importer and discovered a new consignment that was to reach ICD, Tughlakabad on 31-8-2012. The DRI officers subsequently opened a container no. TGHU 9546915 under Bill of Lading no. OOLU 2526182800 dated 18-8-2012 imported in the name of the importer, and found it to contain cigarettes of two brands of Indonesian origin, while the description of the goods was Induction cookers under the brand name of Jetking. On this basis, they alleged that the importer imported goods illegally by mis-declaring them in the IGM and Bill of Lading. 4. During the DRI investigation, an offence report dated 10-9- 2012 was filed before the Commissioner of Customs with details of the importer. On 28-9-2012, a suspension order was passed under Regulation 20(2) of the CHALR against the petitioner on the ground that it had contravened Regulations 13(e) and 13(o) of the CHALR read with Regulation 11(e) and 11(n) of CBLR, 2013. After receiving the order, the petitioner requested for a hearing. A post decisional hearing was allowed on 17-10-2012. In the written reply filed on the same date, the petitioner submitted all the documents of the importer, to prove its fulfilment of KYC norms. However, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The facts further revealed that when Sh. Tej Pal Singh was asked to produce their customer (Importer) for joining investigation by DRI, he reported that the person was not living at the given address and his present whereabouts were not known to him. Further, on 30.8.2012 the DRI team searched the declared premises of MIs Nikhaar Associates and the Proprietor Mrs. Subhash at 1484, Sec-16, Faridabad, Haryana. The address was found to be a residential premises but the person was not found residing there. The inquiries caused from other residents in the building revealed that no such person has been residing therefor the last one year and no company in the name of M/s Nikhaar Associates even existed there. Thus, the matter is crystal clear and just to say that all the documents for clearance were received by Sh. Tej Pal Singh through some other person and without verifying the facts / details of know your customer or not looking after the work at this lCD, doesn t serve the purpose towards CHA s responsibilities justification of his legal obligations. Here, the authorized person of CHA received all the documents for clearance through some other person and when the CHA was asked to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the relevant records were called for. 7. The relevant provisions applicable here are: 20. Suspension or revocation of licence. - (1) The Commissioner of Customs may, subject to the provisions of regulation 22, revoke the licence of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part or whole of security, on any of the following grounds, namely :- (a) xxx (b) 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; (c) xxx (2) Notwithstanding anything contained in sub-regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, within fifteen days from the date of receipt of a report from investigating authority, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated. (3) Where a licence is suspended under sub-regulation (2), notwithstanding the procedure specified under regulation 22, the Commissioner of Customs may, within fifteen days from the date of such suspension, give an opportu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s fit within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-regulation (5). (8)Any Customs House Agent aggrieved by any decision or order passed under regulation 20 or sub-regulation (7) of regulation 22, may prefer an appeal under section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of section 129 of the Act. [emphasis supplied] 8. In the present case, the petitioner s complaint is that despite responding to the show cause notice on 27-02-2014, within the 30 day period permitted, the respondents proceeded to hold an ex-parte enquiry and finalize the report of 04-03-2014. 9. This Court has considered the submissions and the records. The reply though termed interim was given within the period prescribed. The noting sheet records an entry acknowledging that the reply was received by customs authorities; the noting was made on 03- 03-2014. The next day, i.e. 04-03-2014, a decision to forward the reply to the Inquiry Officer was taken. Unfortunately for the petitioner, that office prepared the report on 04.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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