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2016 (11) TMI 816 - CESTAT CHANDIGARH

2016 (11) TMI 816 - CESTAT CHANDIGARH - TMI - Proceedings against the CHA - attempted export of non-basmati rice - prohibition under SI. No. 45A of Schedule 2 of ITC (HS) - Whether the time limit prescribed under Regulation 22(2) CHALRs 2004 are to be followed strictly or not? - Held that: - The issue of time limit came up before the Hon'ble High Court of Delhi in the case of S.K. Logistics [2016 (4) TMI 1063 - DELHI HIGH COURT] where it was held that A careful perusal of the said order reveals .....

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olation of the time limit under Regulation 22(5) of CHALR 2004 for submitting the enquiry report would vitiate the proceedings. - The first enquiry report was submitted by the enquiry officers on 26.06.2012 which was not supplied to the appellant and the Ld. Commissioner of Customs arbitrarily appointed in another enquiry officers on 04.07.2012 who submitted the report as per the wishes of Ld. Commissioner of Customs on 10.08.2012. In fact, there is no provisions in CHALR, 2004 to appoint s .....

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of appointment of second enquiry officer therefore, the impugned order is set aside - appeal allowed. - Appeal No. C/55772/2013 - FINAL ORDER NO. 61497/2016 - Dated:- 7-10-2016 - Mr. Ashok Jindal, Member (Judicial) And Mr. Devender Singh, Member (Technical) Sh. N. Bindal, Advocate - for the appellant Sh. Satyapal, A.R. - for the respondent Per Ashok Jindal: The appellant (Customs House Agents) has filed this appeal against the impugned order revoking wherein CHA Licence and forfeiture of securi .....

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fter, post suspension hearing was given to the appellant on 27.07.2010 by the Commissioner of Customs and after considering the submissions of the appellant, the suspension was confirmed vide order dated 13.08.2010. In the meantime, the show cause notice was issued to the appellant on 12.08.2010 under Regulation 22 of the CHALR 2004. 3. The Deputy Commissioner conducted the enquiry and submitted his report dated 26.06.2012 and no case has been made for suspension of CHA licence. As the Ld. Commi .....

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ice was issued on 12.08.2010 and the enquiry report was submitted by the enquiry officer on 26.06.2012 thereafter, the second enquiry was initiated on 04.07.2012 and report was submitted CHA licence has been revoked on 19.11.2012 which is gross violation of Regulation 22 of the CHALR 2004. He submits that as per Regulation 22(1) of the CHALR 2004, the Ld. Commissioner of Customs is required to issue the show cause notice within 90 days from the date of receipt of offence report. In this case the .....

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follow the time limit prescribed, as he was required to pass the order within 90 days of the receipt of enquiry report but he passed the impugned order only on 19.11.2012 which is beyond the 90 days. He further submits that the Ld. Commissioner initiated second enquiry on 04.07.2012 which is not permissible under Regulation 22(7) of the CHALRs 2004. In fact, if the Ld. Commissioner of Customs was not agreed with the enquiry with the report, he should have to notice to the appellant and to pass t .....

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is out of business since then, therefore, as the appellant is already suffered his business for six years therefore, the impugned order is to be set aside in the light of the decision of this Tribunal in the case of S.K.D. Shipping Agency 2015 (328) ELT 539 (Tri. Mumbai). 5. On the other hand, the Ld. AR opposed the contention of the Ld. Counsel and submits that the time limit prescribed in the Regulation are directory in nature not mandatory and the time limit prescribed under regulation 22 are .....

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ustoms is permissible to appoint second enquiry officers in the case when he is not agreed with the enquiry of report? (C) Whether in the facts and circumstances case the punishment suffered by the appellant is sufficient or not? 8. The issue of time limit came up before the Hon'ble High Court of Delhi in the case of S.K. Logistics (Supra) wherein the Hon'ble High Court has observed as under: 9. No explanation has been offered Regulation 22(5) of the CHALR. All that is stated in the memo .....

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of the SCN in completing the inquiry and submitting a report. In the circumstances, the view taken by the CESTAT that the consequential order of revocation of licence is vitiated in law cannot be faulted with. No substantial question of law arises for consideration by this Court. Again the issue has been examined by the Hon'ble High Court Delhi in the case of Impexnet Logistic 2016-TIOL-1069-HC-DEL-CUS wherein the High Court has observed as under: 8. Recently by an order dated 24th April, 2 .....

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eto are held to be invalid. Further, even the enquiry report was not submitted within a period of 90 days of the issuance of the SCN. Further, the Hon'ble High Court of Madras in the case of A.M Ahmed Company (Supra) has examined the issue of time limit and further observed as under: 20. The time limit prescribed in Regulation 22(1) has to be understood in the context of the strict time schedule prescribed in various portions of the Regulations. Regulation 20 (2), for instance, entitles the .....

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e offence report. Consequently, the period of 90 days should commence only from that date. If so report calculated, the impugned proceedings have obviously been initiated beyond the period of 90 days. and thereafter the Hon'ble High Court has held that the provisions of Regulation 22 are to be followed strict time schedule. 9. Further, the Ld. AR has relied on the decision of this Tribunal in the case of Unison Clearing Pvt. Ltd. (Supra) but the Hon'ble High Court shall prevail over the .....

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Customs arbitrarily appointed in another enquiry officers on 04.07.2012 who submitted the report as per the wishes of Ld. Commissioner of Customs on 10.08.2012. In fact, there is no provisions in CHALR, 2004 to appoint second enquiry officers but Regulation 22(7) only gives power to the Ld. Commissioner of Customs to consider the report submitted by enquiry officers and taken the decision thereon which the Ld. Commissioner failed to do so. This issue came up before this Tribunal in the case of N .....

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