TMI Blog2019 (1) TMI 736X X X X Extracts X X X X X X X X Extracts X X X X ..... d show that before doing so, the licensee should be put on notice and he must be heard. However, Regulation 11(2) can be invoked for suspending the license only when the Commissioner of Customs feels and comes to a conclusion that immediate action is necessary to suspend the license. Perusal of the impugned order in this writ petition would show that no such consideration was made by the Commissioner of Customs except extracting Regulation 11(2) and stating that an enquiry is contemplated in this case and that allowing the petitioner to continue for work will seriously jeopardize the Customs duties and security of Cargo. The respondent has not stated any other reason anywhere as to why an immediate action is required in this case - This Court has considered the similar provision made under Regulation 21(2) of the Customs House Agent License Regulation in 1994 (11) TMI 244 - MADRAS HIGH COURT [1994 (11) TMI 244 - MADRAS HIGH COURT], where it was held that In the absence of any indication that there was application of mind by the Collector on the aspect as to whether immediate action was necessary, in my opinion, the impugned order cannot be sustained. Thus, the present impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Gate Pass and deceived the Security Staff of the Container Freight Station to get ingress into the Container Freight Station. Based on the forged Gate Pass, the truck took delivery of the said Container with the Cargo seized by the Customs and left in the Container Freight Station. At that time, the Preventive Officer of the Container Freight Station was not present. On 06.12.2018 at about 12.30 p.m., the theft/crime was noticed when the Gate Pass was discovered to be a forgery. The CCTV footage was thereafter checked and the details of the truck bearing Registration No.TN 04 AQ 3488 were traced out. Thereafter, enquiries were made and the owner of the truck was traced and it was found that the Cargo was de-stuffed and the empty container stored in M/s.Sri Container Terminal. Thereafter, the petitioner lodged a written complaint with M-1 Madhavaram Police Station and the Officers of the Customs. The Police Authorities did not accept the complaint on the ground that only the Customs Authority shall have right to lodge the complaint. The petitioner immediately informed to the respondent authorized officer present at the Container Freight Station orally on 06.12.2018 at 4.30 p.m. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e principles of natural justice. There is no immediate urgency necessitating applicability of Rule 11(2) of the 2009 Rules. The fact that the Customs have permitted release of all the 88 containers which were lying at the Port after the said incident, is a clear indication that there is no urgency involved to suspend nor any intentional violation of the Rules by the petitioner. 3. A counter affidavit is filed by the respondent wherein it is stated as follows: a) The petitioner is declared as Customs Area for Handling both import and export goods and was also appointed as the Custodian of Import/Export goods. The license was renewed for a period upto 31.05.2022. As a Customs Cargo Service Provider, the Customs Freight Station is bound to discharge duties and abide by the Regulations. The Cargo would be delivered only on issuance of the delivery orders by the steamer agents subsequent to the payment of customs duty. The petitioner received a container bearing No.HMMU6066767 on 25.10.2018. On 26.10.2018, the Container was detained by the Docks Intelligence Unit and detention order letter had been given to the CFS officials. After examination of the said Container, it was found t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .Thirurani Logistics Pvt Ltd CFS has miserably failed to perform their duties and responsibilities as custodian as per the Customs Act, 1962. Even the CFS Senior General Manager has accepted their mistake for not following the standard procedures. However, a post decisional hearing was granted on 28.12.2018 to the petitioner by the Commissioner of Customs Chennai VIII. The petitioner has not been charged with for violation of Section 45(3) of the Customs Act, 1962. To allow the petitioner to continue for work as Customs Cargo Service Provider with such a method of working will seriously jeopardize the Customs duties and security of cargo. An inquiry is going on and the matter will be adjudicated on merits after completion of the investigation. Hence, the writ petition may be dismissed. 4. The learned counsel for the petitioner submitted as follows: The respondent has invoked Regulation 11(2) to suspend the license without indicating anywhere in the impugned order as to whether an immediate action is necessary to suspend the license, pending enquiry. Such finding is very much essential and necessary for invoking Regulation 11(2), since the same is empowering the respondent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inst such Customs Cargo Service provider is pending or contemplated. 9. Perusal of the above said provision would show that the Commissioner of Customs is empowered to suspend the approval granted to Customs Cargo Services Provider in appropriate cases where immediate action is necessary, pending enquiry or where the enquiry is contemplated. Therefore, it is evident that action under Regulation 11(2) can be taken only when the Commissioner of Customs is of the view that immediate action is necessary for suspending the license. Needless to say that such consideration must explicitly available in the order of suspension. Certainly, the order of suspension made by exercising the power under Regulation 11(2), an exparte action, is not a punishment by itself, but a preventive action before passing a final order either imposing a punishment or otherwise. At this juncture, it is relevant to note that Regulation 11(1) empowers the very same Commissioner to suspend or revoke the license and the procedure to be followed for suspension or revocation of the license is contemplated under Regulation 12. Perusal of the Regulation 12 would show that before doing so, the licensee should be p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made by the learned counsel for the parties. The power of the Collector to take action under Regulation 21(1) is not questioned in the writ petition. It cannot also be disputed that under Regulation 21(2) the Collector has the power to suspend licence of a Customs House Agent when enquiry against such agent is pending or contemplated where immediate action is necessary. 8. In my opinion the power to suspend the licence is to be exercised where immediate action is necessary. A plain reading of the impugned order does not show that the Collector applied his mind to consider whether immediate action was necessary in the case. The order also does not state that the licence was suspended before immediate action was necessary. I do not express here one way or the other as to whether on the facts of the case immediate action was necessary or was not necessary because it is for the Collector to take decision in that regard. 9. In the absence of any indication that there was application of mind by the Collector on the aspect as to whether immediate action was necessary, in my opinion, the impugned order cannot be sustained. The Collector gets jurisdiction to suspend the licence i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action is indeed required in the matter. What we see from the impugned order dated 9th June, 1998, is that the expression immediate action itself is missing. That apart, what we find from the preamble, recitals and facts stated in the order is that the circumstances did not warrant the taking of immediate action in terms of Regulation 21(2) of the 1984 Regulation. 12. Going by the above decision of this Court as well as the Division Bench of Calcutta High Court, it is evident that the present impugned order passed under Regulation 11(2) without there being any finding as to why immediate action is necessary to suspend the license, cannot be sustained even though the respondent is entitled to proceed against the petitioner under 11(1) after issuing notice to them. 13. No doubt, the learned counsel for the respondent contended that the impugned order had referred to all the violations of the Standing orders and therefore, the impugned suspension order has to be construed as the one passed with immediate action. I have already stated that the suspension under Regulation 11(2) is not a punishment. Hence, the alleged violation cannot be relied on as the sole basis for taki ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
