9911796707
TMI Blog2013 (10) TMI 1002X X X X Extracts X X X X X X X X Extracts X X X X ..... uiry ‘pending or contemplated’ on passing of the suspension order dated 02.09.2011, as required under Regulation 22 (1). At this stage, we cannot accept that such a step is still being contemplated. No person’s right to carry on his profession can be stopped for a prolonged period through the means of a suspension order. Such an approach is against provisions in Regulations 20 and 22 of CHLAR. So we are of the view that the impugned order suspending the license of the appellant is no longer sustainable in view of the decision of Hon. Madras High Court in the case of CC Vs. Ganesh Shipping Agency [2008 (7) TMI 437 - HIGH COURT OF JUDICATURE AT MADRAS] - Decided in favour of appellant. - Appeal Nos. C/279/2011 - FINAL ORDER No.40461/2013 - Dated:- 10-10-2013 - Shri P.K. Das and Shri Mathew John, JJ. For the Appellant: Shri S. Krishnandh, Advocate and Shri B.Satish Sundar, Advocate For the Respondent : Shri K.S.V.V. Prasad, JC (AR) JUDGEMENT Per Mathew John: 1. The appellant is a Customs House Agent ( CHA for short) licensed under Custom House Agents Licensing Regulations, 2004 ( CHLAR for short) by Custom House, Chennai. The appellant had filed three Bills of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the interests of Revenue. Therefore, Commissioner of Customs initially suspended the license without any notice to the appellant vide order dated 23-06-2011. After that a post decisional hearing was offered on 10-07-2011 as envisaged in CBEC Circular9/2010-Cus dated 08-04-2010. However, the appellant challenged the suspension order before the Hon. High Court of Madras on various grounds including delay in issuing such suspension order. After further opportunities for hearing as per the order of the Hon. High Court when the case was fixed for hearing on 18-08-2011, the appellant submitted written submissions and the impugned order is passed as per Regulation 20(3), after considering such written submissions. By the impugned order dated 02-09-2011, the suspension already ordered was ordered to be continued. Aggrieved by this order of 02/09/2011, the appellant has filed this appeal before the Tribunal. 3. The Ld. Advocate for the appellant initially pointed out that concerned Bills of Entry were field on 19-03-2010 and DRI submitted its report to the licensing authority only some time near 24-05-2011 and therefore from the pace at which the matter was investigated and reported, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat in cases where suspension is ordered under Regulation 20 (2), there is no need to follow procedure as laid down in Regulation 22 (1) and that is the reason why the show cause notice has not been issued. He further submits that CBEC Circular 9/2010-Cus dated 08-04-2010 in para 7.1 and 7.2 deals completion of suspension proceedings and not completion of proceedings for revocation of license. Now the procedure for suspension is complete and it is within the scope of regulation 20(2) and hence a valid order and the challenge to such an order in this proceeding is not maintainable. He submits that enquiry will be completed expeditiously if the appellant co-operates and final show cause notice for revocation of licence will be issued, if found necessary. 7. We have considered the submissions of both sides. Regulation 20 of CHALR 04 is reproduced below:- REGULATION 20-SUSPENSION OR REVOCATION OF LICENCE. (1) The Commissioner of Customs may, subject to the provisions of regulation 22, revoke the licence of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part or whole of security, on any of the following grounds, namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received within the time-limit specified in the notice referred to in sub-regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs to inquire into the grounds which are not admitted by the Customs 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) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n order was passed. Now, the next stage is the enquiry as envisaged in Regulation 22 (1). This can commence only after issue of a Show Cause Notice, as envisaged in Regulation 22(1), which has not been done in this case so far. We are of the view that where the immediate suspension has been ordered under the provisions Regulation 20(2) and thereafter the procedure would follow procedure for enquiry under Regulation 22(1), which starts from the issue of notice, has to be followed. We have already discussed above that such enquiry has to start with the issue of Show Cause Notice and such process is different from investigative process required to unearth evidences. 11. The argument of the appellant that the order does not state that an enquiry is pending or contemplated may not have seriously vitiated the order if the facts proved other-wise and it would depend upon facts and circumstances of each case. In the present case, we find that after two years from the date of suspension not even the show cause notice, is issued for initiation of enquiry which should have been followed in the case of an inquiry pending or contemplated on passing of the suspension order dated 02.09.2011 ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
