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M/s Pushpanjali Logistics Versus Commissioner of Customs (General) , New Delhi

2016 (3) TMI 605 - CESTAT NEW DELHI

Validity of Commissioner's order - Revokation of CHA licence - Violation of clear procedure under Regulation 20 and mandated procedure under Regulation 22 - Held that: there was no notice contemplated under Regulation 22(1) or the nomination of enquiry authority as specified therein, ever emanated from the respondent, who is the jurisdictional Commissioner. Also the inquiry report dated 20.09.2012 by Shri KGVN Surya Teja, Dy Commissioner of Customs, SUB, Mumbai was wholly unauthorised as the res .....

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our of appellant - Appeal No. C/60022/2013-CU (DB) - Final Order No. C/A/53807/2015-CU(DB) - Dated:- 9-12-2015 - G Raghuram, President And R. K. Singh, Member (T) For the Appellants : Ms Reena Rawat & Mr Piyush Kumar, Advs For the Respondent : Mr Amresh Jain, DR ORDER Per G. Raghuram The appellant is a Customs House Agent (CHA). The appeal is preferred against the order dated 29.07.2013 of the Commissioner of Customs (Import & General). New Customs House, New Delhi whereby in purported e .....

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merits. Since the appeal succeeds on the ground of lack of jurisdiction, it is not necessary to analyse challenge of the impugned order on merits of the decision. 2. Ld. counsel for the appellant has presented a list of dates, on which there is no contest by the respondent Revenue. 3. To the extent relevant and material, the chronology of events reveals that on 09.07.2008, the Commissioner, Customs (Gen), Mumbai was intimated by Directorate of Revenue Intelligence that the appellant's Mumba .....

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ner of Customs, SIIB, Mumbai to conduct enquiry into the alleged misconduct of the appellant.; On 20.09.2012, the Enquiry Officer furnished his report. On 07.11.2012, the respondent issued a Show Cause Notice enclosing a copy of the enquiry report, drawn up by the Dy. Commissioner of Customs, SUB, Mumbai and proposed revocation of appellant's CHA licence and forfeiture of security deposit, on the basis of recommendations and conclusions in the enquiry report dated 20.09.2012. The impugned or .....

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n such notice) and should further intimate to the CHA, the factum of having nominated a specified Dy. Commissioner or Asst. Commissioner of Customs to whom a written statement of defence should be submitted by the CHA. The appellant further contends that the enquiry officer whose report dated 20.09.2012 was the basis for the impugned order, was not nominated by the respondent. He was appointed by the Commissioner of Customs, Mumbai. This is a patent and fatal infirmity which vitiates the whole p .....

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ce were not framed by the respondent. Appellant has also contended that the satisfaction as to existence of grounds for potential revocation of the licence, is a satisfaction to be arrived at by the jurisdictional Commissioner and cannot be abdicated by the authority or usurped by the Mumbai Commissioner, who has no power to revoke appellant's licence, under Regulation 20 of CHALR, 2004. 5. Pursuant to an Interlocutory Order dated 28.10.2015, the ld. Departmental Representative was directed .....

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d by the Mumbai Commissioner and not by the respondent; that the Delhi Commissioner had merely issued the Notice dated 07.11.2012 on the basis of the enquiry report dated 20.09.2012 drawn up by the Dy. Commissioner, SUB, Mumbai; and that this Notice was based on no enquiry conducted by any officer appointed by the respondent. 6. Regulation 20 of the 2004 Regulations authorises the Commissioner of Customs, subject to provisions of Regulation 22 to revoke the licence of a CHA and order for forfeit .....

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h Commissioner, a written statement of defence and to specify in the said statement whether the licencee desires to be heard in person by the Dy. Commissioner of Customs or Asst. Commissioner of Customs. Clause (2) of the Regulation 22 authorises the Commissioner of Customs, on receipt of the written statement, or where no such statement is received within the time specified in the notice referred to, to direct Asst. Commissioner of Customs or Dy. Commissioner of Customs to inquire into grounds .....

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findings. Clause (6) requires the Commissioner of Customs to furnish to the licencee a copy of the report of the enquiry authority and to call upon the CHA to submit within the specified time, any representation that he may desire to make against findings of the enquiry authority. Clause (7) provides that the Commissioner of Customs, after considering the report of the enquiry officer and the representation thereon, if any, made by the licencee shall pass such order as appropriate in the circums .....

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Customs shall invite applications for grant of such number of licences as assessed by him. Regulation 5 sets out the procedure for application and provides that an application shall be made to the jurisdictional Commissioner. The contents of such application are also specified in this Regulation. Regulation 7 delineates the procedure for scrutiny of an application and Regulation 8 provides for examination of an application for licence. Regulation 9 specifies that the Commissioner of Customs sha .....

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ns of the CHA. Regulations 14 to 19 are in the nature of house keeping provisions, such as change in directors of the company, change in constitution of company, change in constitution of a concern, engagement of persons qualified in the examination referred to in Regulation 8, maintenance and inspection of accounts and employment of persons. Regulation 20 is the substantive provision enumerating the power to suspend or revoke the licence. Regulation 21 authorises the prohibition of operation of .....

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y which may exercise the power of suspension or revocation of licence and by following the procedure mandated under Regulation 22 is the same authority. No other inference is legitimate since the process mandated under Regulation 22 is for due exercise of the power of suspension or revocation of CHA licence, authorised under Regulation 20. The procedure mandated under Regulation 22 thus is that the jurisdictional Commissioner (authority which issued the CHA licence) must alone issue a notice in .....

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