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TMI Blog2013 (12) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... e appellant have been able to make out a case that the contravention of Regulation 13(a) is arguable and requires consideration in detail and conclusion reached by the Commissioner may be sustainable or may not be sustainable. There is no admission by the CHA that he has not advised the importer and also there is no admission by the importer that he was not advised by the CHA. It is not clear on what basis the learned Commissioner has reached the conclusion that CHA has not given the advice and thereby violated the provisions. The ground taken by the learned Commissioner is that one IEC is of Jamnagar and another is of Mehsana and Shri Sachin Shah was in Bombay. Once the facts emerging from the records show that Shri Sachin Shah was impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner, which is made in Appeal No. C-425 of 2011 is also for suspension of licence of CHA pending enquiry for post decisional hearing, the early hearing of stay petitions and the appeal filed against order dated 8-7-2011 have become infructuous and accordingly, the same are dismissed. 2. Learned counsel for the appellants argued the matter in great detail even though the matter was listed only for hearing of early hearing application of stay petition and stay petition against the impugned order. It was submitted that detailed arguments and early hearing are required in this case since the order of suspension has civil consequences since issue involves livelyhood of CHA as well as several dependent employees of the CHA. In view of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case was registered, Deputy Commissioner, Pipavav, who was not an investigating authority at all, wrote a letter to the Commissioner based on proceedings initiated consequent to the investigation by DRI and recommended action. The action of the Deputy Commissioner in submitting the report recommending action and action of the Commissioner in initiating action are contrary to the provisions of Regulation 20(2) of CHALR since the report itself was not from competent initiating authority, which is DRI. It was also submitted that no further verification or investigation was conducted by the Deputy Commissioner of Customs, Pipavav, but he relied upon the proceedings initiated by the DRI which resulted in adjudication order and order-in-appeal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to find out exactly the nature of report. From the discussion what emerges is that Deputy Commissioner, Pipavav was asked to report after OIA was received and thereafter the correspondence started, which culminated in the letter dated 2-7-2011 of the Deputy Commissioner, Customs, Pipavav. When we examine the facts and circumstances of the case, it is found that DRI investigated the case; made out an offence case; show cause notice issued to Shri Satish Shah, who was the importer but was not the holder of the IECs, in whose name imports were made; Shri Kataria who had given the IEC Nos. to Shri Sachin Shah did not participate in the adjudication proceedings; DRI did not think it necessary to issue show cause notice to the appellant since p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions of Regulation 20(2). In this case it is three years. Further, learned counsel also cited the decision of the Hon ble High Court of Bombay in the case of National Shipping Agency - 2008 (226) E.L.T. 46 (Bombay) in that case import was in Sept. 2005 and order of suspension was issued on 30-10-2006, which is slightly more than one year. Hon ble Mumbai High Court took the view that suspension was not warranted. I find both the decisions support the submissions of the learned Counsel. Of course, Regulation 20(2) has been amended and therefore the decisions rendered earlier may not be applicable but for the fact that in this case the report itself is not from the investigating officer. Thus the action of the Commissioner under Regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re are several decisions of the Tribunal holding that a formal authorisation is not essential where the importer who has imported goods does not contradict the CHA and does not say he has not authorised CHA to act on his behalf. The only difference in this case is that the CHA initially stated that he was not authorised but subsequently produced some letters. It is not known from where they came from, how they came from and why they were produced. Since the suspension has to be followed by proper enquiry, these aspects have to be looked into. Prima facie appellant have been able to make out a case that the contravention of Regulation 13(a) is arguable and requires consideration in detail and conclusion reached by the Commissioner may be sus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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