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TMI Blog2013 (7) TMI 248X X X X Extracts X X X X X X X X Extracts X X X X ..... hat:- Declaration made in the bill of entry by the CHA is in accordance with the description of the goods given in the commercial invoice issued by the foreign supplier and also in terms of the licence issued by the DGFT, New Delhi. If the goods are found to be different from those what has been declared in the bill of entry, the department can proceed against the importer and not against the CHA who acts based on the documentary evidence submitted by the importer - There is no proximity between the action of suspension and the act of filing the bill of entry - The bill of entry was filed in January 2012 and the test report indicating that the goods imported were different from those given in the import documents was also known to the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be 100% HCFC R-22 instead of the declared gas of HCFC R-404A. The appellant was the CHA who filed the bill of entry. A statement of the appellant was recorded on 08/02/2012 and in the statement of the partner of the appellant firm submitted that they have filed the bills of entry based on the import documents furnished by the importer and also on the basis of the classification of the imported goods given in the import licence issued by the DGFT. After conducting the investigation in the matter, a show-cause notice was issued to the importer as also to the appellant proposing to confiscating the imported goods and imposition of penalties vide notice dated 27/07/2012. Thereafter on 13/12/2012 the CHA licence of the appellant was suspended ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt has stated these facts. In the absence of any malafide intention and in the absence of any knowledge on the part of the CHA about the misdeclaration by the importer, the question of suspending the CHA licence does not arise. The Hon'ble High of Bombay in the case of National Shipping Agency reported in 2008 (226) ELT 46 (Bom) held that power of suspension is an emergent power to be used in those cases where it is required that CHA licence be immediately suspended. In that case the violation took place in the year September 2005 and the order of suspension was issued in October 2006 after a period of one year and therefore, the Hon'ble High Court of Bombay held that there was no emergency which required the licence be suspended. In the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the department can proceed against the importer and not against eh CHA who acts based on the documentary evidence submitted by the importer. Secondly, we find that there is no proximity between the action of suspension and the act of filing the bill of entry. The bill of entry was filed in January 2012 and the test report indicating that the goods imported were different from those given in the import documents was also known to the department as early as January 2012. A show-cause notice was also issued to the importer and the appellant proposing confiscation of the goods in July 2012. No action appears to have been taken against the appellant almost for a period of one year under the provisions of CHALR, 2004 has been given to the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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