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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 ..... when the stay application came to be hearing. Therefore the applicant was informed that it will be appropriate to wait for the final order of the Commissioner which is required to be passed within 15 days from the date of hearing. Subsequently, the appellant filed another early hearing application of stay petition against order No. dated 19-8-2011 and made a request that both the early hearing applications in respect of orders dated 8-7-2011 and 19-8-2011 may be listed together by mentioning on 29-9-2011, which was allowed. Today, when the matter come up for hearing, since the order passed by the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the importers against two bills of entry filed on 9-5-2008 and two bills of entry filed on 22-5-2008. After verifying the facts briefly, he stated in the last paragraph that CHA had violated the Regulation 20(2) of CHALR for not obtaining authorisation from the authorities and recommended further action. It was submitted that this is not an investigation report. By the time this letter was written, the show cause notice issued had already been adjudicated and in fact it was submitted that even Commissioner (Appeals) had passed the order on this issue. After more than three years after the offence case was registered, Deputy Commissioner, Pipavav, who was not an investigating authority at all, wrote a letter to the Commissioner based ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first two Paragraphs of letter dated 2-7-2011 give a clear indication that action was initiated not based on any investigation but on an initiative from the office of the Commissioner namely by the Assistant Commissioner, STF. Further, the subject of the letter also starts with the words OIA number, which would again show that action was probably taken after the OIA was received in the Commissioner's office. Unfortunately, learned Commissioner in his order has not mentioned about the report from the investigating authority and how it was submitted etc. Therefore, it became necessary to go through the letter to find out exactly the nature of report. From the discussion what emerges is that Deputy Commissioner, Pipavav was asked to report a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be allowed to continue doing business without an enquiry. In this case, it is more than three years later that action has been initiated and that too not based on the report of the investigating authority. Learned counsel relied upon to the decisions of the Tribunal in the case of Vector Freight Forwarders - 2009 (246) E.L.T. 641 (Tri.-Chennai) to submit that action cannot be taken with such delay. I find considerable force in this argument. In the case of Vector Freight Forwarders the suspension was ordered after three months of seizure of the goods and Tribunal took a view that it cannot be sustained under the provisions of Regulation 20(2). In this case it is three years. Further, learned counsel also cited the decision of the Hon'ble H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... participated in the investigation which means that he has accepted that he was the importer; apparently the bank guarantee given by Shri Sachin Shah was sufficient for the purpose of duty and other liabilities from what appears in the order; Shri Sachin Shah himself has signed the documents as an authorised person of IEC; no investigation was conducted by the DRI to show that IEC did not authorised to Shri Sachin Shah; in fact it appears that no investigation was conducted in this regard since Sachin Shah readily admitted his liability for having given IEC Nos. only for the purpose of importation. 7. Further, there are several decisions of the Tribunal holding that a formal authorisation is not essential where the importer who has imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... show that Shri Shah has not been advised, prima facie the contravention of this regulation does not appear to be sustainable. 9. The next regulation that has been contravened, according to the order is 13(o) of CHALR. This regulation prescribes KYC norms to be followed and was introduced only in the year 2010. Learned Commissioner has taken a view that this is applicable for the past period also. Prima facie this is not correct. 10. In view of the above, the impugned order is required to be stayed in the interest of justice since the issue leads to civil consequences and Revenue has not succeeded in showing that immediate suspension is warranted or is in accordance with law or is justifiable on merits on a prima facie basis. It ..... X X X X Extracts X X X X X X X X Extracts X X X X
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