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TMI Blog2009 (8) TMI 673X X X X Extracts X X X X X X X X Extracts X X X X ..... er has challenged Establishment Order No.235/2009 dated August 10, 2009 issued by the Commissioner of Customs (Airport Administration), Custom House, Kolkata, suspending the operation of the CHA Licence No. F - 5 ( PAN No. AAACF6464C) held by the petitioner No.1, with immediate effect. 3. The petitioner is a Company incorporated under the provisions of the Companies Act, 1956 and has been carrying on business, inter alia, as a Customs House Agents since 1987. The petitioner holds a Customs House Agents' license, issued under the Customs House Agents Licensing Regulations, 2004, which is valid till 2016. According to the petitioner, the petitioner has had an unblemished record as a Customs House Agent. 4. In or about April 2009, the petitioner cleared an export consignment purportedly on behalf of one M/s. Swift Freight (I) Pvt. Ltd. The consignment was apparently covered by a Shipping Bill No.5543848. 5.The container appears to have reached Haldia Port on April 22, 2009. While the goods were awaiting loading on the vessel, Officers of Directorate of Revenue Intelligence caused a search and found 6085 Kgs of Red Sanders instead of Hot Dipped Galvanised Tension Bars. The good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of Shri Binoy Majumder, Director of M/s. Fairdeal Enterprise Pvt. Ltd., Shri Indranil Roy, Employee of M/s. Fairdeal Enterprise (P) Ltd., Shri Shankar Kumar Mitra, Import-Export Sales Executive of M/s. Swift Freight(I) Pvt. Ltd., Shri Sujit Moitra, Branch Manager of M/s. Swift Freight (I) Pvt. Ltd., it appears that the CHA has failed to properly advise his client to comply with the provisions of the Act by way of ensuring that the information given in the Shipping Bill was correct. It thus appears that the CHA has violated the provisions of Regulation 13(a) and 13(d) of the CHALR'2004." 9. Mr. Sudhir Meheta, learned Advocate appearing on behalf of the petitioner, submitted that the power to suspend a Customs House Licence could only be exercised upon compliance with the provisions of Regulation 22 for revocation of a licence. 10. For the sake of convenience Regulations 20, 21 and 22 of the Customs House Agents Licensing Regulations, 2004 are extracted herein below: "Regulation 20. Suspension or revocation of licence. - (1) The Commissioner may, subject to the provisions of regulation 22, revoke the licence of a Customs House Agent and order for forfeiture ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... House Agent. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs House Agent, for the purpose of ascertaining the correct position. (4) The Customs House Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) All the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall be prepare a report of the inquiry recording his findings. (6) The commissioner of Customs shall finish to the Customs House Agent a copy of the report of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, and shall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and is an independent provision, Regulation 20(2) does not lay down the procedure to be followed by the authority following immediate suspension. Therefore, as no procedure has been enumerated following immediate suspension, answer, if any, has to be found from the Regulations itself. Regulation 22 which deals with the "procedure for suspending or revoking licence under Regulation 20", provides the answer. Regulation 22(1) provides the procedure for suspending the licence of an agent. Hence, as Regulation 20(2) does not lay down the follow up procedure, the procedure under Regulation 22 is to be followed. Regulation 22 postulates "The Commissioner of Customs shall issue a notice in writing to the Customs Agent stating the grounds on which it is proposed to suspend".. "the licence and requiring the said Customs House Agent to submit, within such time as may be specified in the notice, not less than forty five days, to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him a written statement of defence and also to specify in the said statement whether the Customs House Agent desires to be heard in person.." Thus, as seen, the agent is not only by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by Regulation 22 in case of action under the said Regulation, it is doubtful whether this Court can insist on compliance with the procedure prescribed under Regulation 22. 18. The view taken by this Bench finds support from an order of a Division Bench of Bombay High Court in Commissioner of Customs (General) -Versus- S.A.Dalal Co., reported in 2008(221) ELT 488 (Bom). However, in that case, it was found on facts that the suspension was not immediate and accordingly the Division Bench did not interfere with the order of the Tribunal setting aside the suspension. 19. There can be no doubt that power under Regulation 20(2) has serious civil consequences for a customs house clearing agent, and the principles of natural justice must be complied with. However, in cases that require immediate suspension post decisional hearing may suffice. A post decisional hearing must be given immediately after suspension. Furthermore, the power under Regulation 20(2) to suspend the licence should not be exercised lightly, but only in exceptional cases. Interim suspension has to be short and investigation has to be carried out with utmost expedition. In a case of indefinite suspension, the rem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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