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2013 (12) TMI 1039 - AT - CustomsRevocation of CHA licence - Attempt to smuggle Red Sander Logs - Misuse of IEC code of the original exporter - Authorisation letter from the exporter for undertaking the Custom clearing work not obtained - Clearance of export consignments without verifying the credential of the exporter - Violation of Custom House Agent Licence Regulation, 2004 - Held that - wherein the enquiry officer held that charge is not proved and Commissioner of Customs (Gen.) considering the report and thereafter, gave a finding that charges are proved and withdrew the order of suspension of CHA licence and made operative the CHA licence on forfeiture of security deposit. The appellant should be placed in similar situation - Following decision of Vipul P. Doshi v. C.C.E. 2012 (11) TMI 570 - CESTAT, MUMBAI and C.C. (GENERAL) Versus S.S. CLEARING & FORWARDING AGENCY P. LTD. 2010 (10) TMI 212 - BOMBAY HIGH COURT - Decided in favour of assessee.
Issues Involved:
1. Jurisdiction of the Commissioner of Customs to disagree with the enquiry officer's report. 2. Timeliness of the show-cause notice issuance. 3. Validity of the revocation of the Custom House Agent (CHA) licence. Detailed Analysis: 1. Jurisdiction of the Commissioner of Customs to Disagree with the Enquiry Officer's Report: The appellant argued that the Commissioner of Customs lacked the power to disagree with the enquiry officer's report, which found the charges 'not proved.' The appellant cited the decision in C.C.E. v. Rajan Virji & Co., where the Bombay High Court held that the Commissioner of Customs (Gen.) does not have the authority to disagree with the enquiry officer. However, it was noted that the Supreme Court had admitted an SLP against this decision, but no stay was granted. The respondent countered by referencing the case of Delta Logistics, where the Bombay High Court referred the matter to the Chief Justice for fresh consideration on whether the Commissioner could differ from the enquiry officer's findings. Due to this ongoing judicial consideration, the tribunal chose not to address this issue further. 2. Timeliness of the Show-Cause Notice Issuance: The appellant contended that the proceedings were beyond the period of limitation as the Commissioner of Customs (Gen.) failed to issue a show-cause notice within 90 days from the receipt of the offence report, as required by Regulation 22(1) of the CHALR, 2004. The offence report was received on 8-6-2010, and the show-cause notice was issued on 30-11-2010, which is beyond the prescribed 90-day period. The respondent argued that the show-cause notice was issued within the required timeframe. However, the tribunal found that the notice was indeed issued beyond the 90-day period, thus violating Regulation 22(1) of the CHALR, 2004. 3. Validity of the Revocation of the CHA Licence: The enquiry officer's report had found the charges against the appellant 'not proved.' Despite this, the Commissioner of Customs (Gen.) revoked the CHA licence and ordered the forfeiture of the entire security deposit. The appellant argued that they had acted diligently and were not involved in the alleged smuggling. The tribunal observed that in similar cases, such as Standard Shipping Agency and Vipul Pranlal Doshi, where the enquiry officer found charges 'not proved,' the Commissioner had only ordered the forfeiture of the security deposit and made the CHA licence operative again. The tribunal noted that the appellant should be treated similarly. Conclusion: The tribunal concluded that the appellant had already suffered sufficient punishment. Following precedents set in similar cases, the tribunal ordered the withdrawal of the revocation of the CHA licence No. 11/90, subject to the forfeiture of the entire security deposit. The appeal was disposed of in these terms. Final Order: The revocation of the CHA licence No. 11/90 is withdrawn with immediate effect, subject to the forfeiture of the entire security deposit. The appeal is disposed of accordingly. Pronounced in Court on 16-2-2012.
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