2015 (1) TMI 577 - AT - Customs

Suspension of CHA License - Non compliance of procedure of Regulation 22(2) - Held that - Following decision of Following decision of D.Thimmeswara Rao & others 2013 (11) TMI 1045 - CESTAT CHENNAI and Manjunath Shipping Services Vs Commissioner of Customs (Imports), Chennai 2013 (10) TMI 1002 - CESTAT CHENNAI - initial suspension order dated 11.5.2012 was issued under Regulation 20 (2) of CHALR, 2004 and which was continued by the impugned order dt. 6.6.2012 issued under Regulation 20 (3) of CHALR, 2004. It is seen that no proceeding was initiated under Regulation 22 of CHALR, 2004 in so far as no show cause notice was issued to the appellant under Regulation 22 (1) of Regulations 2004, which is required to be issued within 90 days from the date of receipt of offence report. - the impugned suspension order cannot be sustained and accordingly, it is set aside - Decided in favour of appellant.

Issues Involved:

1. Suspension of CHA Licence under Regulation 20(2) and 20(3) of CHALR, 2004.
2. Requirement and compliance of enquiry under Regulation 22 of CHALR, 2004.
3. Validity and sustainability of the suspension order without issuing a show cause notice.

Issue-wise Detailed Analysis:

1. Suspension of CHA Licence under Regulation 20(2) and 20(3) of CHALR, 2004:

The appellant, operating under CHA Licence No.R.227/CHA, filed a shipping bill for the export of leather goods. Upon examination, it was found that the goods were semi-finished leather, attracting export duty. Consequently, the Commissioner of Customs issued a suspension order on 11.5.2012 under Regulation 20(2) of CHALR, 2004, followed by an order on 6.6.2012 under Regulation 20(3) for the continuation of the suspension. The appellant challenged this order before the Hon'ble Madras High Court, which directed the appellant to file an appeal before the Tribunal and granted a stay on the impugned order.

2. Requirement and Compliance of Enquiry under Regulation 22 of CHALR, 2004:

The appellant argued that no show cause notice was issued, nor was an enquiry officer appointed under Regulation 22 of CHALR, 2004. The Tribunal, in similar cases such as D.Thimmeswara Rao & Others Vs CC (Port-Import), had set aside suspension orders due to non-compliance with Regulation 22. The Tribunal observed that Regulation 22 mandates the issuance of a notice within 90 days from the date of receipt of the offence report, followed by an enquiry. The Tribunal emphasized that the procedure under Regulation 22 must be followed, and failure to issue a notice invalidates the suspension order.

3. Validity and Sustainability of the Suspension Order without Issuing a Show Cause Notice:

The Tribunal noted that the suspension orders dated 25.4.2012 and 23.5.2012 were issued under Regulation 20(2) and 20(3), respectively, without initiating the enquiry process under Regulation 22. The Tribunal cited its earlier decision in Manjunatha Shipping Services Ltd. Vs. Commissioner of Customs (Import), Chennai, where it was held that a show cause notice is essential for the enquiry process under Regulation 22. The Tribunal found that despite the Hon'ble High Court's direction on 2.7.2012 to follow Regulation 22(2), no notice was issued, rendering the suspension order unsustainable.

Conclusion:

The Tribunal concluded that the continuation of the suspension orders under Regulation 20(3) of CHALR, 2004, without following the procedure under Regulation 22, was unjustified. The Tribunal set aside the suspension order, allowing the appeal filed by the appellant. The decision was upheld by the Hon'ble Madras High Court, confirming that the suspension orders could not continue without compliance with Regulation 22.

Final Judgment:

The appeal was allowed, and the suspension order was set aside due to non-compliance with the procedural requirements under Regulation 22 of CHALR, 2004. The Tribunal emphasized the necessity of issuing a show cause notice and conducting an enquiry as mandated by the regulations.

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