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2011 (3) TMI 246 - AT - CustomsSuspension of licences - CHA - Anti Dumping Duty (ADD) - Notification No.12/2010 Cus. dated 19.02.2010 - Principles of natural justice - Regulation 20 (3) of CHALR - on presentation of the shipping documents for clearance of the impugned goods under Notification No.12/2010 dated 19.2.2010, DHL advised MITPL in July 2010 that the consignment would have to suffer higher ADD unless the notification was amended - This submission as regards consulting DHL is not corroborated or tested in cross examination before the impugned order was passed - it is not established that DHL themselves had carried out any incriminating corrections of documents - It was obvious and known to the CHA that the exporter in the invoice was initially by TBV Netherlands as reflected also in other shipping documents - There is no necessity of putting the party on notice of such action proposed and the material relied on - Appeal is rejected by way of remand
Issues Involved:
1. Suspension of CHA License 2. Violation of CHALR Regulations 3. Principles of Natural Justice 4. Evidence and Manipulation of Documents 5. Immediate Action and Urgency Detailed Analysis: 1. Suspension of CHA License: The appeal was filed by M/s. DHL Lemuir Logistics Private Ltd. (DHL) against the suspension of their Custom House Agent (CHA) license under Regulation 20(2) of the Custom House Agents Licensing Regulations, 2004 (CHALR) by the Commissioner of Customs, Bangalore. The suspension was based on DHL's involvement in facilitating the clearance of tyres imported by M/s. Michelin India Tyres Pvt. Ltd. (MITPL) on payment of a lower rate of Anti-Dumping Duty (ADD) by manipulating shipping documents. 2. Violation of CHALR Regulations: The Commissioner found that DHL had violated Regulation 13(d), 13(e), 13(n), and 19(8) of CHALR. DHL was accused of failing to advise their client to comply with the Customs Act, withholding original and manipulated documents, and advising the importer to evade payment of ADD. The Commissioner concluded that DHL had full knowledge of the document manipulation and had colluded with the importer to evade ADD. 3. Principles of Natural Justice: DHL argued that the impugned order was based on the order of the Commissioner of Customs (General), Mumbai without conducting an independent enquiry or hearing the appellant, thereby violating the principles of natural justice. DHL contended that immediate suspension was a drastic action without exceptional circumstances warranting such an order. 4. Evidence and Manipulation of Documents: The Commissioner relied on various pieces of evidence, including internal correspondence within DHL, statements from MITPL employees, and documents seized from DHL's computers. DHL argued that there was no evidence to substantiate the claim that they had manipulated the documents. They also highlighted that the changes in the documents were made by MITPL employees and not by DHL. 5. Immediate Action and Urgency: The Tribunal examined whether the immediate suspension of the CHA license was justified. Regulation 20(2) of CHALR allows the Commissioner to suspend a CHA license where immediate action is necessary. The Tribunal found that the Commissioner had relied on a report from the Commissioner of Customs, Nhava Sheva, and concluded that the immediate suspension was warranted to prevent further misuse. Conclusion: The Tribunal upheld the suspension of DHL's CHA license, finding that the Commissioner had acted within his powers under Regulation 20(2) of CHALR. The Tribunal noted that the suspension was not a punishment but a necessary immediate action. DHL was given the opportunity for a post-decisional hearing, and the Commissioner was directed to hear the CHA within ten days and pass orders under Regulation 20(3) of CHALR within a week thereafter. Pronouncement: The appeal was rejected, and the suspension order was upheld. The Commissioner was instructed to provide all relied-upon material to DHL to defend its case during the post-decisional hearing. The Tribunal emphasized the seriousness of the violation and the necessity of immediate action to protect the revenue.
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