9911796707
TMI Blog1998 (1) TMI 244X X X X Extracts X X X X X X X X Extracts X X X X ..... nt) was involved in making fraudulent drawback claims of various amounts in two cases, one in relation to M/s. S.V.R. Enterprises and another relating to M/s. Sharp Enterprises. The Commissioner had observed that the Modus Operandi in the two cases was to export rejected or cheap, jun. semiconductor devices at inflated prices and claim drawback on All Industry rates as applicable. He had also observed that the Proprietor of the present appellant firm (M/s. Star Carriers), Shri Sushil Mohla, was also partner in M/s. S.V.R. Enterprises. The licence was suspended in exercise of the powers conferred on the Commissioner under Regulation 21(2) of Customs House Agent Licensing Regulations, 1984. 2. Appearing for the applicant Shri L.P. Asthana, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1997, the proceedings started in June, 1995. In the case of M/s. Sharp Enterprises also the case was detected in June, 1995 and the adjudication proceedings are still continuing. Having regard to these facts, there was no justification for invoking the provisions of Regulation 21(2) since no emergent situation had arisen on 10-11-1997 in relation to events which had taken place more than two years before the issue of order of suspension. He relied on the following decisions in support of his contention : (1) East West Foreign Carriers v. CC, Madras, 1995 (77) E.L.T. (Madras High Court); (2) Rajinder Kr. Goyal v. CC, 1995 (79) E.L.T. 54 (Delhi High Court); and (3) Syed Ali Co. v. CC, New Delhi, 1996 (84) E.L.T. 494 (Tribunal). He s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce there was nothing in the impugned order either in support of or against the said claim. He submitted that the Commissioner had given a clear finding in paragraph 2 of the order that the modus operandi in the two cases showed that inflated drawback claims were being made by certain parties and the Proprietor of the applicant firm was involved in such cases. He also drew attention to the fact that in the case of S.V.R. Enterprises, the present appellant was a Partner of said firm. He referred to the Tribunal decision in JAC Enterprises v. Collector of Customs, 1994 (72) E.L.T. 626 in which the Tribunal had observed that an appeal will not be maintainable against an interlocutory order like the order of suspension of CHA. The Tribunal had r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cence of a CHA on any of the three grounds mentioned therein. Sub-regulation (2) of Regulation 21 gives the power to the Collector to suspend the licence of a CHA notwithstanding anything contained in Regulation 21(1) in appropriate cases, where immediate action is necessary . Regulation 23 provides the procedure to be followed for suspending or revoking a licence after issuing a proper SCN and after giving an opportunity to the CHA to defend himself. On an analysis of the scheme of Regulations 21 and 23, it would appear that sub-regulation (2) of Regulation 21 is of an exceptional and special nature. Suspension of a licence under sub-regulation (2) is normally to be resorted to only where the Collector is satisfied that immediate action i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant s licence so as to prevent him from continuing his modus operandi in similar future cases. It is to be noted that suspension order is a preventive action operating in future rather than a penal measure for a past misconduct. In our view the proximity to the commission of an offence cannot be the sole basis for resorting to preventive action. The potential for repetition of the offence in future is also an equally relevant factor. Further, Rule 23 providing for the procedure applies both to suspension and revocation. Since a certain discretion has been rested in the Collector under Regulation 21(2), unless it is shown that the discretion has been exercised without application of mind or without disclosing the reasons for immediate action ..... X X X X Extracts X X X X X X X X Extracts X X X X
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