TMI Blog2016 (11) TMI 467X X X X Extracts X X X X X X X X Extracts X X X X ..... er factual contentions that the petitioner may raise challenging the impugned order, it is appropriate that the petitioner should invoke the appellate remedy available under the provisions of the Act. The appellate remedy available to the petitioner is before the Tribunal which is the final Court of fact. The Tribunal is empowered to re-appreciate the factual contentions and come to a correct conclusion as to whether the stand taken by the petitioner is justified or not? The Tribunal can call for and examine the records of the Department to test the correctness of the petitioner's submissions. Therefore, the petitioner has to necessarily avail the alternative remedy. The facts are seriously disputed and to consider the same, it would be necessary to adjudicate those disputed questions of fact, which obviously cannot be done in a Writ Petition and this was not permitted to be done before this Court at the very inception and that was preciously the reason for the petitioner to restrict their contentions in the Writ Petition on the above two grounds. Likewise, the counter affidavit filed by the respondent was only restricted to those two contentions raised by the petitioner. Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oker, Licence Agents, etc., and it was found to contain 364 pieces of wooden logs of Red Sanders , weighing 13720kgs, whereas in the Shipping Bill, dated 04.03.2013, the cargo was declared as 16 pallets of Refractory Bricks . The investigation proceeded further, statement was recorded from the managing partner of the petitioner and after completing the other formalities, the petitioner was called upon to show cause, by show cause notice dated 19.02.2014, as to why their licence should not be revoked and the security deposited by them should not be forfeited or penalty should not be imposed upon them under Regulation 18 of the CBLR, for the failure to comply with the provisions of the Regulations. An Inquiry Officer was appointed to inquire into the grounds, which were not admitted by the petitioner. The respondent would state that the petitioner did not appear for personal hearings offered to them by the Inquiry Officer on 17.10.2014, 27.10.2014 and 28.10.2014 and did not submit any oral or written submissions. Hence, the Inquiry Officer submitted his report concluding that the petitioner has not followed the KYC norms prescribed by the Central Board of Excise and Customs (CBEC), v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Broker Licence. On these contentions, the respondent while adjudicating the show cause notice and passing the impugned order recorded that the copy of the order of suspension, dated 17.05.2013, under Regulation 20(2) of the CHALR, was addressed to the petitioner at No.181, Linghi Chetty Street, First Floor, Chennai 600001, which had been received by them in person on 20.05.2013 and also by post; the counsel for the petitioner had attended the post decisional hearing on 27.05.2013 and filed written submissions on 29.05.2013 and there was no mention about the change of address at the time of personal hearing or in the written submissions. An order-in-original dated 14.06.2013, continuing the suspension was passed and the same was sent to the petitioner at the above referred address, which was received by them on 16.06.2013, again in person and aggrieved by such order, the petitioner has preferred an appeal to the CESTAT on 10.07.2013. In the appeal memorandum filed before the CESTAT, the address of the petitioner has been given as No.181, Linghi Chetty Street, First Floor, Chennai 600001 and the same is the address in the statement of facts, as well. While stating that it ma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as been passed on 11.06.2015, after six months from the date on which the report was submitted by the Inquiry Officer. 6. Thus, the contention raised by the petitioner is that commencing from the issuance of the order of immediate suspension culminating in the impugned order revoking the licence, the entire proceedings are barred by limitation. In support of such contention, reliance was placed on the decision of the Hon'ble Division Bench in the case of The Commissioner of Customs (Imports), Anr., vs. M/s.A.M.Ahmed Co., in W.A.No.371 of 2015, dated 02.07.2015, and the decisions of the Delhi High Court in the case of Impexnet Logistic vs. Commissioner of Customs (General) reported in 2016-TIOL-1069-HC-Del-Cus, Indair Carrier Pvt Ltd., vs.Commissioner of Customs (General), reported in 2016-TIOL-111-HC-DEL-CUS, HLPL Global Logistics Pvt Ltd., vs. The Commissioner of Customs (General) reported in 2016-TIOL-1119-HC-DEL-CUS, Burleigh International vs. The Commissioner of Customs (Import), reported in 2016-TIOL-1123-HC-DEL-CUS, and M/s.Sunil Dutt vs. Commissioner of Customs (General) reported in 2016-TIOL-1135-HC-DEL-CUS. 7. The learned counsel further referring to the lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 45 days to the Customs House Agent to submit written statement of defence. Thus, the respondent would contend that proceedings against the petitioner commenced, when CHALR was in force, which did not stipulate any time limit for revoking the licence under Regulation 22. It is further submitted that when CBLR was notified in exercise of the powers conferred under Section 146(2) of the Customs Act, 1962 and in super session of the CHALR, an exception was carved out in respect of things done or omitted to be done before such super-session. Therefore, it is submitted that the 2013 CBLR will apply to all cases except in respect of things done under CHALR before super-session of CHALR and in the present case proceedings for suspension or revocation were initiated under Regulation 22 of the CHALR, 2004. Therefore, the impugned proceedings being in continuation of the proceedings initiated under CHALR is valid and not barred by limitation. 10. With regard to the plea that copies of the notices, inquiry report, orders were not served on the petitioner and with regard to the intimation of the change of address, the respondent would state that the show cause notice dated 19.02.2014, was de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the opinion of the Commissioner renders him unfit to transact any business in the Customs Station. (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 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 the case may be, within fifteen days from the date of hearing granted to the Customs House Agent. 21....... 22. Procedure for suspending or revoking licence under Regulation 20.- (1) The Commissioner of Customs shall issue a notice in writing to the Customs House Agent within ninety days from the date of receipt of offence report, statin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y representation that he may wish to make against the findings of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. (7) The Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs House Agent, pass such orders as he deems 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. CBLR:- In Exercise of the powers conferred by sub-section (2) of section 146 of the Customs Act, 1962 (52 of 1962), and in super session of the Customs House Agents Licencing Regulations, 2004, except as respect things done or omitted to be done before such super session, the Central Board of Excise and Customs hereby makes the following regulations. 13. In terms of CHALR, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner cannot dispute the fact that the CHALR does not prescribe any time limit for action being initiated and their contention is solely based upon the new Regulations CBLR, 2013, which is inapplicable. 15. Furthermore, the petitioner would place reliance on a circular issued by CBEC dated 08.04.2010 by which the Board prescribed certain time limits in cases warranting immediate suspension under Regulation 20(2). It is therefore submitted that the impugned order has been passed in utter disregard to the time limit fixed by the Board in the aforementioned circular. Though such contentions have been advanced not only by relying upon the circular issued by the Board and certain decisions of the Hon'ble Division Bench of this Court and other High Courts, a decision cannot be arrived at sans facts. Thus the conduct of the licensee is very relevant while examining as to whether the Department should be non-suited on the ground of delay. This finding is recorded bearing in mind that the fact CHALR, does not provide for a time limit for action being taken. What is stressed upon is circular issued by the CBEC. Even the said circular dated 08.04.2010 has been carefully worded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice or inquiry report has not been served on the petitioner and they harped upon the stand that the Department's communication was sent to the old address and therefore, it is presumed that the show cause notice also would have been sent to the same address. While adjudicating the show cause notice and passing the impugned order, the respondent has specifically recorded that there is no mention about the change of address at the time of personal hearing on 27.05.2013 or in the petitioner's written submission dated 29.05.2013. The order of continuation of suspension dated 14.06.2013 was received by the petitioner in person on 16.06.2013. Aggrieved by which the petitioner preferred an appeal before the CESTAT and in the appeal, address given by the petitioner is No.181, Linghi Chetty Street, First Floor, Chennai 600 001, which admittedly is the old address . Thus in the considered view of this Court, the respondent rightly concluded that the petitioner has been adopting delaying tactics to obtain time for reasons best known to them. 18. In the light of the foregoing discussions, the twin contentions raised by the petitioner in this Writ Petition challenging the im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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