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TMI Blog2015 (7) TMI 1336X X X X Extracts X X X X X X X X Extracts X X X X ..... in Regulation 22(1) need not be strictly adhered to. On the question that the first respondent is duty bound to initiate proceedings within 90 days from the date of receipt of offence report, there are no two opinions, at least before me. Therefore, the decision of the Division Bench of the Delhi High Court is of no assistance to the respondents. Hence the first contention is to be upheld. CONTENTION 2: 26. The second contention of the petitioner is that the importer got the dispute settled in terms of Section 127(B) of the Customs Act 1962 with the Settlement Commission. Paragraph 6.2 of the order of the Settlement Commission, relied upon by the petitioner in his affidavit reads as follows:- "The Bench observes that the applicant has made a true and full disclosure of all the facts relating to the imported goods. Besides, he has also submitted details of post importation services/repairs undertaken by him and expenditure incurred on servicing, supply of spare parts, incidental charges, etc., which were not included in the original import value of the goods. The remittances were also made by him including service charges from India to Singapore through banking channels. His ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Learned Additional Solicitor General for the Appellants proceeds to project an argument that the Learned Single Judge should have seen that the "Customs Act", 1962 and the Customs House Agents License Regulation, 2004 operates on two different areas, the former for 'Levy and Collection of Duties' being a plenary legislation and the latter for 'Regulating the Licenses' issued to the Customs House Agents by the Central Board Excise and the Customs under the "Delegated Legislation" and hence forth shall not be read into one another. 7.According to the Learned Additional Solicitor General of India for the Appellants, the Learned Single Judge had erred in concluding at Paragraph No.25 that the Appellants had not raised the plea that the time limit prescribed under Rule 22 of CHALR, 2004 is only Directory and not Mandatory ignoring the specific plea raised at Paragraph No. 17 of the Counter Affidavit filed by the Appellants. 8.The Learned Additional Solicitor General of India for the Appellants contends that the Learned Single Judge had failed to appreciate the Law that the action taken by the 1st Appellant/Commissioner of Customs, Tuticorin in issuing Show Cause Not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of Importer M/s I.Tech Imports and Exports relates to the immunity from prosecution subject to the payment of additional customs duty, fine, interest and penalty and proceedings regulating the Licence issued under CHALR, 2004. 14.The Learned Additional Solicitor General of India for the Appellants brings it to the notice of this Court that the Respondent/Petitioner is Licensed Custom House Agent possessing License No.R.390 (PAN AAAFA1151A) having validity up to 31.12.2016 issued by the Chennai Customs under Regulation 9(1) of the Customs House Agents Licensing Regulations, 2004, referred to as "CHALR, 2004" framed under Section 146 of the Customs Act, 1962. In fact, the Respondent/Petitioner was operating at Tuticorin Customs Station upon 'C' Form intimation. 15.The Learned Additional Solicitor General of India for the Appellants draws the attention of this Court to the fact that the Directorate of Revenue Intelligence (DRI) through the letter dated 05.12 had informed the Tuticorin Customs that the Respondent/Petitioner had filled a Bill of Entry No.473263 dated 16.11.2009 on behalf of their client M/s I-Tech Imports and Exports for the import of goods declared as plas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Writ Petitioner in the Show Cause Notice dated 12.11.2012. The report of the Inquiry Officer was forwarded to the Respondent/Petitioner through the letter dated 13.06.2013 and a reply was filed by the Respondent/Petitioner dated 19.06.2013. 20.Apart from the above, one more opportunity of personal hearing was granted to the Respondent/Petitioner requiring him to appear on 04.11.2013 before the Commissioner of Customs (Imports) and the same was informed to it as well as its Counsel who was appearing in the enquiry proceedings, but, the Respondent/Petitioner had not appeared for the personal hearing and its Learned Counsel filed a letter dated 04.11.2013 that the notice was served on that day and he was having an hearing in 'CESTAT' and Madras High Court and further mentioned that the 1st Appellant/1st Respondent had no jurisdiction to proceed with the matter and sought for reply to its earlier Letter dated 19.06.2013 before fixing a date for hearing. 21.The Commissioner of Customs (Imports) finally passed an Order on 11.11.2013 Order-in-Original No.2242/2013 revoking the license issued to the Respondent/Petitioner and forfeited the 'Security Deposit', but, the docu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r No. 09/2010 dated 08.4.2010. The Commissioner of Customs, Tuticorin through Letter dated 06.09.2012 forwarded the case to the 1st Appellant/Commissioner of Customs, Chennai, the Licensing Authority to initiate further action against the Customs Broker for revocation of License under Regulation 22 along with his report and enclosure of documents. Only, on the basis of the report issued by the Commissioner of Customs, Tuticorin, Show Cause Notice dated 12.11.2012 was issued to the said Customs Broker by the 1st Appellant Commissioner of Customs, (Imports), Chennai under Regulation 22 of the CHALR, 2004 and thus, the Show Cause Notice was issued within 90 days from the date of receipt of report from the Commissioner of Customs, Tuticorin. As such, the ingredients of Regulation 22(1) of CHALR was not violated in the present case. 27.The Learned Additional Solicitor General of India for the Appellants contends that the Commissioner of Customs had given personal hearing on 04.11.2013, which was an extended opportunity, but, the Respondent/Petitioner failed to avail the same. Also that, while responding to the personal hearing notice, the counsel for the Respondent/Petitioner had given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Similarly, it is seen from the show cause notice F.No.VIII/13/18/2001-CHAL dated .05.2010 issued to the importer and CHA that on earlier occasions, the CHA had filed the following Bills of Entry, on behalf of the above importer, and imported machineries by declaring low value as detailed below:- Sl. B.E. No. & Date Value declared Actual value Value suppressed 1. 762158 dt. 09.06.08 USD 23190 USD 42190 USD 19000 2. 882350 dt. 04.11.08 USD 18600 USD 38649 USD 20649 3. 290911 dt. 20.08.09 SGD 28600 SGD 43600 SGD 15000 4. 468437 dt. 07.09.09 SGD 12250 SGD 27250 SGD 15000 In the above cases also the importer transferred the declared value of the machineries to the Importer's own account in Singapore through Bank of India in Form A1 and the suppressed value had been transferred to the above account in Singapore, through Bank of India, in Form A2 as technical charges. Also the CHA had declared lesser value in the above Bills of Entry despite having knowledge of actual value. The total differential duty demanded, with regard to five Bills of Entry worked out to Rs. 10.88 Lakhs, which was later paid by the importer as per the Settlement Commission's orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is 'Regulation' is silent as to the term 'offence report'. 32. In this connection, it is worthwhile for this Court to extract the Regulation 20: 'Suspension of Revocation of Licence' which runs as follows:- (a) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under regulation 10; (b) failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else; (c) any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or any where else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station. (2) Notwithstanding anything contained in subregulation (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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of what is meant by 'offence report' one can conveniently and safely take the Show Cause Notice dated 18.05.2010, as the date of receipt of 'offence report'. Viewed in that perspective, the period of 90 days ought to commence from that date in the considered opinion of this Court. 37.In so far as the Appellants are concerned, they fall back upon a Circular No.9/2010-Customs in F.No.502/5/2008-Cus.VI, Government of India, Ministry of Finance, Department of Revenue issued by the Central Board of Excise and Customs dated 08.04.2010 wherein in Paragraph No.5, it deals with 'Suspension of Revocation against CHAs operating on 'C' Form intimation basis', for fuller and better appreciation of the subject matter in issue, the Paragraph No.5.2 is quoted as under:- "Further, it is also clarified that the Commissioner of Customs at a customs station who had authorised a CHA to operate on 'C' Form intimation, should inform the details of violations to the Commissioner of Customs at the customs station from where the CHA licence was issued for such CHA, so that necessary action for suspension or revocation of CHA licence was issued for such CHA, so tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicant has made a prima facie case to the effect that they incurred expenditure on imported goods supplied by them to customers after clearance from customs. However, it is difficult to quantify the exact amount of charges said to have been incurred toward servicing, supply of spare parts, incidental charges etc., after importation which could be considered for deductions out of the remittances made by them. There is no dispute that payments have been made over and above the amounts mentioned in respective invoices filed by the applicant at the time of clearance of imported goods which has been fully accepted by the applicant." 40.It is to be borne in mind that Section 127-H of the Customs Act, 1962 confers power on the Settlement Commission to grant immunity from prosecution - for any offence under this Act or the Indian Penal Code (45 of 1860) or under any other Central Act for the time being in force and such immunity may be either in whole or in part from the imposition of a penalty, fine and interest under the Customs act, 1962, in regard to the case covered by the Settlement. 41.Suffice it for this Court to point out that granting immunity is itself within the domain and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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