9911796707
TMI Blog2012 (10) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... nting to Rs. 5.15 crore and further informed that Shri Haresh B. Shah, Director of the appellant Company has violated the provisions of Section 13 of the CHALR, 2004 , by facilitating filing of time barred claim and by not bringing to the notice of the Customs authorities about the attempt of M/s General Motors in filing the time barred refund claim. The Revenue was of the view that if the appellant had acted with due diligence, the attempted filing of time barred refund claim would not have taken place. AS the investigation has started, M/s. General Motors withdrew the refund claim which was allowed to withdraw on 09.12.2010. The investigation conducted revealed that a time barred application for refund was filed by M/s General Motors and Shri Shreyas Randive, the then Senior Divisional Manager of M/s General Motors, stated in his statement that he had prepared and signed the application for refund and handed it over to their CHA M/s Sharp Logistics in June, 2010. Shri Haresh B. Shah, Director of the appellant firm denied that he ever received or filed such an application. Shri Ashish Sheth, Managing Director of the appellant firm, whose statement recorded on 01.06.2011, stated th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... violation of Regulation 20(2) of CHALR, 2004. He submitted that as per the Regulation 20(2), if the Commissioner of Customs feels that immediate action is necessary then within fifteen days from the date of receipt of the report from investigating authority, can suspend the licence of a CHA where an enquiry against such agent is pending or contemplated. He further submitted that in this case, admittedly the prescribed time limit under Regulation 20(2) of CHALR, 2004 has not been followed. 4.1 He further submitted that on 08.04.2010 a Circular No.9/2010-Cus was issued for dealing with the Regulation 20(2) and Regulation 22 of the CHALR, 2004. In para 7.2 of the said Circular, it is prescribed that the investigating authority shall furnish its report to the Commissioner of Customs who had issued the CHA licence within thirty days of the detection of an offence. The Licensing authority shall take immediate suspension action within fifteen days of the receipt of the report of the investigating authority. Thereafter, a post-decisional hearing shall be granted to the party within fifteen days from the date of suspension. In this case no time limit has been followed. 4.2 He further drew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... office of the respondent in April 2012 and the licence of the appellant was suspended on 23.05.2012 i.e. aftger 23 days of the receipt of the investigation report and submitted that the delay of eight days is condonable in the facts and circumstances of the case. Therefore the impugned order is to be upheld. 6. Heard both sides and considered the submissions. 7. We find that in this case M/s General Motors has filed a refund claim on 06.12.2010 which was withdrawn by them on 09.12.2010 when investigation took place. From the said facts it is clear that the investigation has started somewhere in December, 2010 when the refund claim was withdrawn. The refund claim was arose on the basis of that in February, 2010/March, 2010 one Korean firm had by oversight mentioned the invoice amount as US $ instead of Koren Won (KRW) due to which the two shipments cleared on the higher invoice value (showing the wrong currency) that in June, 2010, they realized the mistake and brought it to the notice of the higher ups and handed it over the refund claim in the first week of June, 2010 to the appellant at their office. In September, 2010, when M/s General Motors India Pvt. Ltd. pointed out the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion under Regulation 20(2). Accordingly, the investigating authority shall furnish its report to the Commissioner of Customs who had issued the CHA license (Licensing authority), within thirty days of the detection of an offence. The Licensing authority shall take necessary immediate suspension action within fifteen days of the receipt of the report of the investigating authority. A post-decisional hearing shall be granted to the party within fifteen days from the date of his suspension. The Commissioner of Customs concerned shall issue an Adjudication Order, where it is possible to do so, within fifteen days from the date of personal hearing so granted by him. 7.3 From the above provisions, it is clear from the mandate of the legislature, the Regulation 20(2) has prescribed time limit. With effect from 08.04.2010, it is also clarified that if the Commissioner of Customs feels in appropriate cases where immediate action is necessary against the CHA, same should be done within fifteen days from the date of the receipt of the report from the investigating authority to suspend the licence and it is further clarified by the Circular that for immediate suspension on Regulation 20(2), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as proposed by the SDR. The Commissioner is not above the law. He has to obey it. In the present case, the Commissioner's order was passed far beyond the period prescribed by the legislative authority. 7.5 The issue again dealt with by this Tribunal in the case of Sunil Bhatia (supra) wherein the report of the investigating authority was submitted on 24.10.2010 and the suspension order issued on 15.12.2010 and this Tribunal has observed that there has been a considerable delay in issue of the suspension order when adjudged against the time frames prescribed by the Board and thereafter the suspension was revoked. 7.6 Again this issue came before this Tribunal in the case of Kamal Sehgal (supra) and there also this Tribunal hold as under:- "8. We note from the arguments on both sides that the alleged offence against the appellant is not about any action he has done in his capacity as a Customs House Agent. It is about not notifying the department about his knowledge that Shri Lokesh Kumar had intention to smuggle goods. The evidence against the appellant is not based on documents. It is based on statement of the co-accused and the statement of the appellant about his awareness ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s power to suspend pending enquiry. The said sub-regulation however, requires that it can be done in an appropriate case and after following procedure under Regulation 20(2)." 7.9 We have also examined the case law relied on by the learned A.R. in the case of Ami Clearing & Forwarding Pvt. Ltd. (supra) and AR Marine Pvt. Ltd. (supra). All these cases are dealt with the situation prior to 08.04.2010. 7.10 Therefore, as explained by this Tribunal in the case of Om Freight Forwarders Pvt. Ltd. (supra), we are also not impressed with the proposition made by the learned A.R. that Regulation 20(2) as it stood prior to its amendment should be applied to this case, considering the fact that the violation by the CHA had occurred way back in 2010. 7.11 On examination of the above case laws, it is the position in this case that the investigation took place somewhere in December, 2010 i.e. after the amendment in Regulation 20(2) of CHALR, 2004 and the investigation report was received by the Commissioner (as admitted) in April, 2012 and the licence has been suspended on 23.05.2012 are barred by time limit prescribed for taking immediate necessary action as proposed by Regulation 20(2) of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that this appeal has been filed by the appellant CHA on 20 th June 2012 against the Order-in-Original No.15/2012 dated 18/06/2012. The impugned order No.15/2012 has been passed under Regulation 20(3) of Customs House Agents Licensing Regulations 2004 and after going through the order dt. 18.6.2012, I find that a personal hearing was given to the appellant CHA on 5 th June 2012 which is within the time limit of 15 days as prescribed under Regulation 20(3) of the CHALR when counted from 23.5.2012 of order No.11/2012 from which date the licence was suspended. It is also noticed that this order No.15/2012 was issued on 18.06.2012, which is also within 15 days from the date of personal hearing i.e. 5 th June 2012 as prescribed in the Regulation 20(3) of the CHALR. Therefore I do not find any infirmity in the order No.15/2012 passed Commissioner of Customs under Regulation 20(3) of the CHALR. 6. The main argument of the learned Advocate appearing for the appellant is that suspension order No.11/2012 dated 23.05.2012 has been passed beyond the time limit of 15 days as prescribed under Regulation 20(2) of the CHALR. It is the contention of learned Advocate that the investigation report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... own notions of the difficulties likely to be faced by the CHA or his employees. The decision is best to be left to the disciplinary authority save in exceptional cases where it is shockingly disproportionate or mala fide. That is not the case here." Following the ratio of the Bombay High Court I am of the view, the Tribunal should not interfere with the decision of Commissioner of Customs pending inquiry with him. 8.1 The hon'ble High Court of Andhra Pradesh in the case of CC&CE, Hyderabad vs. H.B. Cargo Services [2011 (268) ELT 448 (AP)] dealing with a case wherein the CHA had signed blank shipping bills to exporters for a consideration of Rs. 150 per bill held as follows:- "15. While the punishment imposed on the CHA has to be commensurate with the gravity of the proved acts of misconduct as, on revocation of his license, the CHA would suffer, it must not be lost sight of that, though it is the right of a citizen to carry on his business or profession, it is subject to reasonable restrictions and conditions which, in the present case, are stipulated under the CHALR. As noted hereinabove, blank shipping bills were issued by the partner and authorized representative of the CHA ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irrational. Under the circumstances, it could also be not said that the punishment of revocation of licence was a harsh punishment or the punishment dehors the doctrine of proportionality. The petitioner having failed to point out any perversity or unreasonableness on the part of respondent Authorities warranting judicial intervention, this Court does not find any merits in the present petition." In view of these judgments of the Andhra Pradesh High Court and Gujarat High Court the Commissioner of Customs has rightly suspended the licence of the CHA appellant. 9. In view of the above, I uphold the Order-in-Original No. 15/2012 dated 18.6.2012 and reject the stay petition and appeal. (Pronounced in Court on .......................) Stay Application No. C/S/1372/12 Appeals No. C/528/12 As there is a difference of opinion between the Members of the Bench, therefore, the matter is placed before the Hon'ble President to refer it to a 3 rd Member to decide the issue on the following points:- Difference of Opinion Whether the timeframe prescribed under Regulation 20 is to be followed strictly as held by the Member (Judicial), Or Is to be interpreted liberally as discussed b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rvices (supra) and OTA Kandla Pvt. Ltd. (supra)." 2. Heard both sides. 3. The appellants filed this appeal against the impugned order dated 18.6.2012 passed by the Commissioner of Customs (General), Mumbai. Brief facts of the case are that the appellant is a Custom House Agent (CHA) and is governed by the provisions of Customs House Agents Licensing Regulations, 2004 (CHALR, 2004 for short), As per Regulation 22 of the CHALR, 2004 the Commissioner of Customs (General) in appropriate cases where immediate action is necessary within 15 days from the date of receipt of a report from investigating authority, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated. As per the appellant, in the present case, the Commissioner of Customs suspended the licence vide order dated 23.5.2012 and offered an opportunity for post decisional personal hearing on 5.6.2012 and after granting post decisional hearing, the present impugned order is passed by the Commissioner of Customs (General) and held as under: "I hereby order that the suspension of the CHA Licence No. 11/247 of M/s. Sharp Logistics Private Limited, is hereby continued pending inqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms on the same day agreed with the opinion of the investigating agency to suspend the licence. Hence the order for suspension of the licence is passed on file on 10.5.2012 which is within 15 days from the receipt of the report of the investigating agency. 12. The Revenue relies upon the decision of the Larger Bench of the Tribunal in the case of CC vs Standard Pencil Pvt Ltd reported in 2004 (170) ELT 151 (Tri-LB), the decision of the Hon'ble Supreme Court CC vs MM Rubber Co reported in 1991 (55) ELT 289 (SC) and the order dated 11.2.1997 passed by the Hon'ble Supreme Court in the case of A.P. Khadi and Village Industries vs R. Radhakrishnamurthy to submit that date of order passed on the file is to be taken as date of order though the order was served subsequently on the affected party. 13. I have perused the records produced by the Revenue. The investigation report is received in the office of the Commissioner of Customs, though addressed to the Deputy Commissioner on 25.4.2012. The proposal was put to the Commissioner of Customs (General) to suspend the licence of the appellant and to initiate regular inquiry. The Commissioner of Customs, approved the proposal on 10.5.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the authority concerned, for any possible change or modification therein. This should be done within the prescribed period though the actual service of the order may be beyond that period." 14. I find that as the provisions of the Regulation 20(2) of CHALR, 2004 the suspension order is to be passed within 15 days from the date of receipt of the report of investigating agency. From the records produced by the Revenue, I find that the report of the investigating agency was received on 25.4.2012 and the proposal to suspend the licence was put up before the Commissioner of Customs and the proposal was approved on 10.5.2012. From the record, further, I find that the draft suspension order in respect of the CHA is prepared and it was put to the Deputy Commissioner on 18.5.2012 and thereafter put to the Additional Commissioner on 21.5.2012 and ultimately signed by the Commissioner of Customs on 23.5.2012. The order portion reads as under: "I, therefore, in exercise of powers conferred under the provisions of Regulation 20 (2) of CHALR, 2004 order suspension of the operation of the CHA Licence No. 11/247 of M.s Sharp Logistics Private Limited, with immediate effect pending inquiry u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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