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2012 (5) TMI 275 - AT - CustomsSuspension of CHA licence - Regulation 20(2) of the 2004 Regulation - Board s circular dt. 18.4.2010 - period of limitation of 15 days or 30 days - contradiction in circular and regulations - held that - This appears to be an internal guideline issued by the Board. - this instruction contained in the circular is not part of the Regulation made by the Board. The statute has authorized the Board to make Regulations and the Regulations so made have statutory force. The instructions issued over and above the Regulations cannot be put on the same footing as statutory regulations nor would it be proper for the Tribunal to grant relief treating the instructions to be statutory Regulations which they are not. As such, when the impugned suspension order has been issued within the time limit of 15 days prescribed under the Regulation, the required post-decisional hearing has also been granted by the Commissioner on 28.10.2011, and necessary order for continuing the order of suspension has been passed on 11.11.2011, it is not legally possible nor it is desirable for the Tribunal to set aside the impugned suspension order. - Decided against CHA.
Issues Involved:
1. Suspension of CHA license under Regulation 20(2) of CHALR, 2004. 2. Timeliness and validity of the suspension order. 3. Merits of the appellant's case. 4. Applicability of case laws and Board's circulars. 5. Procedural adherence and post-decisional hearing. Detailed Analysis: 1. Suspension of CHA License under Regulation 20(2) of CHALR, 2004: The Commissioner suspended the CHA license of M/s. Maharaja Cargo due to misdeclaration of goods by M/s. Lubecon Petroproducts, whose bills of entry were filed by the CHA. The goods declared as fuel oil and rubber processing oil were found to be base oil and kerosene oil admixed with low boiling petroleum hydrocarbon solvent. The CHA was accused of failing to obtain statutory authorization from the actual importers, not verifying the antecedents of the actual importer, and failing to advise the importers to comply with the Customs Act, 1962. The Commissioner found a prima facie case against the CHA and deemed immediate action necessary to prevent further misuse of the CHA license. 2. Timeliness and Validity of the Suspension Order: The appellant argued that the suspension order was invalid as it was passed six months after the detection of the offence, contrary to the provisions of Regulation 20(2) which necessitates immediate action. The appellant cited the Division Bench of the High Court of Bombay in the case of Babaji Shivram Clearing & Carriers Pvt. Ltd. Vs. Union of India, which held that suspension under Regulation 20(2) should be immediate. The appellant also referenced the Central Board of Excise & Customs circular No.9/2010 Cus, which prescribes a 30-day limit for the investigating authority to furnish a report and a 15-day limit for the Commissioner to suspend the license upon receipt of the report. The Tribunal found that the suspension order was issued within the 15-day limit from the date of receipt of the investigation report by the Commissioner, as the report dated 28.09.2011 was received on 03.10.2011, and the suspension order was issued on 17.10.2011. The Tribunal held that the Board's circular is an internal guideline and not part of the statutory regulations, thus it cannot be treated as binding. 3. Merits of the Appellant's Case: The appellant contended that there was no violation of Regulation 13 of CHALR, 2004, and that the authorization produced was obtained subsequent to the initiation of investigations. The appellant argued that the lapse in obtaining authorization was an afterthought to cover up the admitted lapse. The Tribunal noted that the merits of the case would be examined during the enquiry and subsequent proceedings, and it was not the stage for the Tribunal to pre-judge the issue. 4. Applicability of Case Laws and Board's Circulars: The appellant cited various case laws supporting the contention that immediate action was not necessary in their case. The Tribunal, however, found that the cited case laws were not applicable to the present case. The Tribunal emphasized that the instructions in the Board's circular cannot be equated with statutory regulations and thus cannot be grounds for granting relief. 5. Procedural Adherence and Post-Decisional Hearing: The Tribunal observed that the suspension order was issued within the prescribed time limit and that a post-decisional hearing was granted on 28.10.2011, with the order for continuing the suspension passed on 11.11.2011. The Tribunal found no irregularity in the suspension order and directed the Customs authorities to complete the enquiry and subsequent proceedings expeditiously, considering the operational impact on the CHA and their employees. Conclusion: The Tribunal dismissed the appeal, finding no reason to interfere with the suspension order. The Customs authorities were directed to prioritize the completion of the enquiry and subsequent proceedings to avoid undue delay. The Tribunal also highlighted the need for the Board to ensure that important posts, such as the Commissioner of Customs, are not left vacant for extended periods.
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