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TMI Blog2012 (10) TMI 196X X X X Extracts X X X X X X X X Extracts X X X X ..... h order dated 18.6.2012 which is under challenge. Hence it cannot be said that the appellants are required to file separate appeal against the order passed by licensing authority dated 23.5.2012. The question is answered accordingly. As per 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, it is found that 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, it is found that 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. Since order suspending the licence is only passed on 23.5.2012, hence no merit found in the contention of the Revenue that the order of suspension was passed on 10.5.2012 i.e. 15 days after receipt of the report of the Investigating Agency, and it is passed in violation of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same was filed by their Baroda office. An investigation was conducted and Shri Haresh B. Shah later-on admitted that the said refund claim was filed on instruction from Shri Shreyas Randive who has telephonically instructed to send such mail to show it to his higher authorities; that he was under pressure from Shri Shreyas Randive as he was giving him business. Shri Shreyas Randive has also stated that he had instructed Shri Haresh B. Shah to file a refund claim in September, 2010 to which Shri Haresh B. Shah denied the same and claimed that he had not attended office till November 2010. From the said act, it appeared that Shri Haresh B. Shah has not filed the said refund claim but he was privy to the said act which is evident from the fact that he had sent an e-mail to Shri Shreyas Randive, General Manager of M/s General Motors wherein he had intimated Shri Shreyas Randive about the filing of refund which he later admitted at the insistence of Shri Shreyas Randive. From the above act of Shri Haresh B. Shah, it is evident that the appellant has violated the provisions of Regulation 13 of the CHALR 2004 for facilitating filing of time barred claim and by not brining to the noti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor of the appellant Company. In fact, Shri Haresh B. Shah is neither Director of the Company nor an employee of the appellant Company but he is only a consultant in their Baroda office. This fact is evident from the CHA licence itself that Shri Haresh B. Shah has resigned from the appellant firm as Director/employee long back in 2007 and this fact has not been appreciated by the adjudicating authority and a case has been made out against the appellant on the basis of the statement of Shri Haresh B.Shah. The working of Shri Haresh B. Shah is no way having any relevance with the appellant as neither he was an employee nor a Director of the appellant firm at that time. Therefore, cognizance of the offence taken by the respondent on the basis of the statement of Shri Haresh B. Shah is without appreciating the fact that he is no where related to the appellant. Therefore, immediate suspension of their licence is not required. 4.3 In support of his contention, he relied on the following judgments:- 1. Om Freight Forwarders Pvt Ltd. vs. Commissioner of Customs (General), Mumbai . 2. Sunil Bhatia vs. Commissioner of Customs, New Delhi 2011(268)ELT 97. 3. Kamal Sehgall vs. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... process the refund claim if it was not filed earlier and it was also intimated to them that the refund claim has already been filed in June 2010 and the same was e-mailed in November, 2010. 7.1 From the perusal of the impugned order it is coming out that Shri Harish B Shah has not filed the refund claim but he was privy to the said act as he has e-mailed to Shri Shreyas Randive for filing the refund claim but it is also cleared from the records that Shri Harish B Shah has resigned from the appellant firm as Director in 2007 thereafter he was neither a Director nor an employee of the appellant firm but he is only a Consultant in their Baroda office. Therefore, the violation of Regulation 13 of CHALR, 2004 as alleged on the basis of the statement of Shri Harish B Shah who was neither Director nor an employee of the appellant firm during the relevant time prima facie is not acceptable. 7.2 Further, the contention raised by the appellant that the action of suspension of their licence under Regulation 20(2) is not warranted at all. For better appreciation of the facts we reproduced the Regulation 20(2) of CHALR, 2004 as under:- (1) .. (2) Notwithstanding anything contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority has to furnish its report to the Commissioner of Customs (Licensing authority) within thirty days of the detection of an offence. Thereafter, the licensing authority shall take necessary immediate suspension action within fifteen days of the receipt of the report of investigating authority. In this case, we find that the investigation was started somewhere started in December, 2010. As per the impugned order, the investigation report has been received by the Licensing authority somewhere in April,2010. From the above, it is clear that the investigating authority has not submitted their report within thirty days of the detection of the offence. Further, we find that the suspension of licence was done on 23.05.2012 whereas it is an admitted fact investigation report has been received somewhere in April, 2012. If we consider that the investigation report has been received on 30.04.2012, then also the suspension is beyond the time period prescribed under 20(2) of CHALR, 2004. 7.4 In the case of Om Freight Forwards Pvt. Ltd. ( supra) this Tribunal has dealt with the situation and in para 8 of the said judgment, this Tribunal has observed as under:- 8. The period prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar adjudication proceeding. In the meanwhile his license has been suspended. Such suspension is normally done to ensure that he does not misuse his position as CHA, having access to Customs area to destroy evidence if any, and also to be on guard about his actual involvement that may be unearthed during investigation. Now that a show cause notice has been issued, the said reasons no longer exist. We also take note of the delay in complying with time frame prescribed by CBEC in Circular No. 9/2010 dated 8.4.2010. The decision of the Madras High Court (sic) in the case of HP Cargo Services (supra) was in the context of a revocation order. The impugned order is a suspension order passed before appreciating the full evidence and considerable time has lapsed after the suspension order. We note that there is no procedure prescribed for periodic review of suspension order which is confirmed after post decisional hearing. Considering all these aspects, we consider it proper to set aside the impugned order suspending the license of the appellant. 7.7 The Hon'ble High Court of Bombay also deals with the issue in the case of National Shipping Agency (supra). Although it is for the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on for condonation of this delay. Therefore, the belated action taken by the respondent cannot be condoned. The respondent is not above the law. He has follow the provisions of law as laid down in the statute and within time frame work. 8. In view of these observations, we set aside the impugned order and revoked the suspension of the CHA licence No.11/247 of the appellant M/s Sharp Logistics Pvt. Ltd. with immediate effect. 9. Order is to be issued immediately. (Pronounced in Court on ..) Per: Sahab Singh I have carefully gone through the proposed order made by the learned Member (Judicial). However, I have different views on the issues. Hence I am recording the separate order. 2. Brief facts of the case have been broadly brought out in the proposed order made by the learned Member (Judicial). Hence, I am not repeating the same. Allegations against CHA in brief are that the refund claim of Rs.5.15 Crores was attempted to be filed in October 2010, which had become time barred by October 2010 and Smt. Shivani Gurav STA inserted the said entry of General Motor refund at serial No.1284 of page 364 which pertains to the claims received upto 16 th June 2010. By mak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken as date of receipt of the investigation report, the order is issued beyond 15 days as prescribed under Regulation 20(2) of the CHALR. 6.1 I find that the appellant has not challenged the order No.11/2012 dated 23.05.2012 before the CESTAT as they have not filed any separate appeal against the Order No.11/2012 dated 23.05.2012. Therefore, they cannot point out the infirmities in the order No.11/2012 for the purpose of appeal filed against the order No.15/2012 against which the appellant has filed this appeal. 6.2 Moreover, I find that under CHALR, the Commissioner of Customs is licensing authority for grant, suspension and revocation of licence. The investigation report was received in the Custom House but it is the important when this investigation report was brought to the notice of Commissioner of Customs by way of putting up the file to the Commissioner of Customs. It is also to be seen whether from that date the Commissioner of Customs has suspended the licence within 15 days on file. The delay caused in putting up the file to the Commissioner as well as delay in dispatch of the suspension order by the officials can be on account of other reasons in view of peculiar f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cases involving corruption there cannot be any punishment lesser than the maximum i.e., revocation of the license. No other lesser punishment can be contemplated in such cases. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The consideration received for the act of misconduct may be small or large. It is the act of corruption that is relevant, and not the quantum involved in such acts. ( emphasis supplied) 8.2 In the OTA Kandla Pvt. Ltd. vs U O I 2011 (269) ELT 457 , the Hon'ble High Court of Gujarat was considering a case of sub-letting of licence, non-maintenance of statutory records, obtaining customs pass for non-employees, etc. While upholding the revocation of CHA licence, the hon'ble High Court held as follows:- 14. In view of the above principles laid down by the Hon'ble Supreme Court in various judgments it clearly transpires that the judicial review of administrative action or of proportionality of punishment is permissible only if the decision of the decision maker is found to be illegal, unreasonable, irrational or suffering from any procedural impropriety, and that the High Court in exercise of jurisdiction under Artic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er. 2. Whether the timeframe work as prescribed under the guidelines issued by CBEC through Circular No. 09/2010 dated 08.04.2010 are to be followed strictly by the Licensing authority or not? 3. Whether the appellants are required to file a separate appeal against the order passed by the Licensing authority on 23.05.2012 as held by the Member (Technical) or not? 4. In view of the amended provision of Regulation 20 and the guidelines issued by the CBEC dated 08.04.2010, whether the Member (Judicial) is correct on arriving at the decision to set aside the impugned order relying on the orders passed by the Tribunal in the case of Om Freight Forwarders Pvt Ltd (supra) Sunil Bhati (supra) and Kamal Sehgal (supra), Or Member (Technical) is correct in upholding the impugned order relying on the decision in the case of Worldwide Cargo Movers (supra), H.B. Cargo Services (supra) and OTA Kandla Pvt. Ltd. (supra). (Order Pronounced on 10.07.2012) 2012-TIOL-CESTAT-MUM C/528/12 In continuation of order No. M/620/2012/CSTB/C-I dt 25/6/12 SHARP LOGISTICS PVT LTD Vs CC, (GENERAL), MUMBAI ORDER NO: S/1052/2012/CSTB/C-I DT 27/07/12 A/607/2012/CSTB ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ding inquiry against the CHA under Regulation 22 of CHALR, 2004. 4. The appellant challenged this order by way of filing the present appeal. 5. Now I take up the difference of opinion in respect of the issue whether the appellant is required to file separate appeal against order dated 23.5.2012 as held by Member (Technical) or not? 6. I find that Regulation 20 of the CHALR, 2004 provides that where the licence is suspended under sub-regulation (2) notwithstanding the procedure prescribed under Regulation 22, the Commissioner of Customs may within 30 days from the date of such suspension gave a personal hearing to the Customs House Agent whose licence is suspended as he may deem fit or rejecting the order continuing it, as the case may be, within 15 days from the date of hearing granted to the Customs House Agent. 7. In the present case, vide order dated 23.5.2012. the licence was suspended by the Commissioner of Customs and also afforded an opportunity of post decisional hearing and thereafter order dated 18.6.2012 was passed. In these circumstances, the order dated 23.5.2012 is merged with order dated 18.6.2012 which is under challenge. Hence it cannot be said that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he proposal on 10.5.2012 and thereafter the impugned order is passed. Now the issue before me is whether the acceptance of proposal to suspend the licence on the noting portion of the file is an order suspending the licence. I find that this issue had come up before the Hon'ble Kerala High Court in Government Wood Works vs State of Kerala reported in 1988 69 STC 62 Ker. The Hon'ble High Court after relying on the decision of the Hon'ble Supreme Court in the case of Raja Harish Chandra Raj Singh vs Deputy Land Acquisition Office (19620 1 SCR 676, Bachhittar Singh vs State of Punjab AIR 1963 SC 395, State of Punjab vs Khemi Ram AIR 1970 SC 214 has held as under: Any authority on which power is conferred, the exercise of which power would affect the rights of parties, is to communicate its order to the party against whom the order would operate. The mere preparation of an order or even keeping the order signed in the files of the office would not render it an effective order, an order which is operative. The exceptions are cases where there is requirement of pronouncing the orders and they are pronounced on notified dates. Then respective of the actual presence or otherwise of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ediate effect pending inquiry under Regulation 22 of CHALR, 2004. 15. The decisions relied upon the Revenue are to the effect that in case the order is passed on file the relevant date of the order when the same is passed and not when the order is issued. This argument is to be tested on the facts on record in the present case. In the present the Commissioner of Customs agreed with the proposal to suspend the licence whether it can be considered as an order passed by the Commissioner suspending the licence on 10.5.2012. I find that, the proposal, on the basis of the report of the investigating agency, to suspend the licence is approved by the Commissioner meaning thereby that a decision has been taken by the Commissioner of Customs to suspend the licence but the order was not passed on 10.5.2012. 16. The provisions of Regulation 20(2) of the CHALR, 2004 provides that where immediate action is required, the Commissioner of Customs within 15 days from the date of receipt of report from the investigating agency suspending the licence of the CHA. From the record, I find that even the draft suspension order was placed before the Commissioner after 10.5.2012 and the same was ultim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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