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2015 (7) TMI 849 - CESTAT AHMEDABAD

2015 (7) TMI 849 - CESTAT AHMEDABAD - TMI - Suspension of Customs House Broker License - Regulation 19 (1) of Customs Brokers Licensing Regulation, 2013 - Misdeclaration of goods - Held that:- Offence was committed on 09.01.2014 and the offence report was submitted on 15.10.2014 and the suspension order was issued on the same day under Regulation 19(1) of the said Regulation and also fixed a post decisional hearing on 30.10.2014. But, the Commissioner of Customs had not issued order for continua .....

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egulation 19(2) was issued after about five and half months in a wrong premises that “since the investigation of the case is still in progress” and no enquiry under Regulation 20 was initiated till date and such order can not be sustained and is liable to be set-aside. - Decided in favour of appellant. - Appeal No. : C/10075,10537/2015, [Application No C/EH/10345/2015] - ORDER No. A/10593-10594/2015 - Dated:- 12-5-2015 - Mr. P.K. Das and Mr. H.K. Thakur, JJ. For The Appellant : Shri Hardik Modh, .....

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uation of suspension of Customs Brokers License under Regulation 19 (2) of the said Regulation, 2013, until further orders. The appellant filed application for early hearing of the appeal No. 10537/2015. As the issue involved in these appeals is common, we take up both the appeals together for disposal. 2. The relevant facts of the case, in brief, are that appellant is holding Customs Broker Licence, under Regulation 2013. On 09.01.2014, the Custom officers intercepted four containers imported i .....

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of the Regulation 2013. The Commissioner of Customs granted personal hearing on 30.10.2014 to the appellant, who appeared before the Commissioner. No further order was passed by the Commissioner within the stipulated period under Regulation 19 (2) of the said Regulation. Hence, on 15.01.2015, the appellant filed Appeal against order dated 15.10.2014 before this Tribunal, which is listed today. Thereafter, the Commissioner by order dated 03.3.2015 directed continuation of suspension order till fu .....

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his ground the suspension order should be set-aside. It is further submitted that no notice was issued to the appellant within 90 days from the date of receipt of offence report under Regulation entry 20 (1) of Regulation 2013. He submits that there is a long delay in issuing order under Regulation 19 (2) and no notice was issued under Regulation 20(1) till date and on these grounds the appeal should be allowed. He relied upon the decision of the Hon ble Madras High Court in the case of Commissi .....

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which was detected by investigation and therefore, there is delay in submitting offence report. He further submits that the delay in passing final suspension order under Regulation 19 (2) is not fatal and therefore, the suspension order should not be set-aside. He also submits that the action under Regulation 20 (1) is not linked with the suspension order under Regulation 19 of the Regulation 2013. It is submitted that issuing notice for revocation of license under Regulation 20 is separate proc .....

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t offence report was submitted on 15.10.2014 against the import on 09.01.2014. The Commissioner issued suspension order immediately on 15.10.2014. It has also granted personal hearing within 15 days, which was attended by the appellant. But, no order was passed within 15 days from the date of hearing to the appellant as required under Regulation 19 (2) of the said Regulation. After filing of the appeal against the order under Regulation 19(1) of the Regulation before Tribunal, the Commissioner p .....

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cence is suspended under sub-regulation (1), the [Principal Commissioner or Commissioner] of Customs shall, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs Broker whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs Broker : Provided that in case the Commissioner of Customs passes an order for co .....

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Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defence and also to specify in the said statement whether the Customs Broker 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 Broker, or where no such statement has been received within the time-limit specified in the notice referred to i .....

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d he may also put any question to any person tendering evidence for or against the Customs Broker, for the purpose of ascertaining the correct position. (4) The Customs Broker shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons i .....

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Customs, as the case may be, and shall require the Customs Broker to submit, within the specified period not being less than thirty days, any representation that he may wish to make against the said report. (7) The Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs Broker, pass such orders as he deems fit either revoking the suspension of the license or revoking the licence of the Customs Broker or imposing penal .....

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ense of a Custom Broker in appropriate case, where immediate action is necessary, where enquiry is pending or contemplated. As per Sub-regulation (2) of Regulation 19, the Commissioner of Customs shall give an opportunity of hearing to the Customs Broker within 15 days from the date of order under sub-regulation (1) of the said Regulation. The Commissioner of Customs shall also pass an order within 15 days from the date of hearing granted to the Customs Broker. Proviso to Regulation 19(2) provid .....

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action under Regulation 19 is linked with Regulation 20 (1). 8. In the present case, we find that the offence was committed on 09.01.2014 and the offence report was submitted on 15.10.2014 and the suspension order was issued on the same day under Regulation 19(1) of the said Regulation and also fixed a post decisional hearing on 30.10.2014. But, the Commissioner of Customs had not issued order for continuation of suspension under Regulation 19(2) within the stipulated period. Proviso to Regulat .....

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ally submitted before the Bench that they have not received any notice. 9. We find that post decisional hearing was granted on 30.10.2014, but, no order was passed within 15 days. After about five and half months, the impugned order was passed and there is no indication that the matter was heard by the Commissioner. The finding of the Commissioner is as under:- 3. Now, the suspension of the CB Licence has been reviewed by me and considered the gravity of offence and since the investigation of th .....

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ued on the basis of investigation report dated 15.10.2014. Further, the Tribunal in the case of Manjunatha Shipping Services Limited vs. Commissioner of Customs, Chennai, vide Final Order No. 40461/2013 dated 10.10.2013 observed that there is distinction between the investigation to unearth evidence required to issue show cause notice and inquiry under Regulation 22(1) as it stood during the relevant time, presently Regulation 20 (1) of Regulation 2013. The relevant portion of the said order in .....

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0(2) makes an exception only in the matter of suspension and not in the matter of revocation. So, it is implied that such inquiry has to be completed, within the time frame prescribed in various sub-regulations of Regulation 22 and a final view in the matter of revocation of license is to be taken. 10. It may be noted that 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 i .....

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mmediate suspension has been ordered under the provisions of Regulation 20(2) and thereafter the procedure would follow procedure for enquiry under Regulation 22(1), which starts from the issue of notice, has to be followed. We have already discussed above that such enquiry has to start with the issue of show cause notice and such process is different from investigative process required to unearth evidences. Furthermore, in our considered view, the impugned order dated 03.03.2015 was passed with .....

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e order. Relevant portion of the said decision is reproduced:- Regulation 20(3) of the CHALR, 2004 is reproduced below : 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 opportunity of hearing to the Customs House Agent whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as .....

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5 days from the post-decisional hearing dated 24-10-2011 is in clear violation of the mandatory provision of Regulation 20(3) which, as rightly pointed out by the learned counsel, vitiated the ex parte suspension order passed by the Commissioner. From the report received from the respondent s side today, it appears that it is not the case of the respondent that non-passing of the order was due to any omission or fault or mistake of the appellant. 12 The Hon ble Bombay High Court in the case of C .....

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