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TMI Blog2014 (3) TMI 839X X X X Extracts X X X X X X X X Extracts X X X X ..... ew after considering the relevant provisions of Regulations to come to a logical conclusion which, in our view, would meet the ends of justice. Revocation of suspension is subject to the condition of the CHA undertakes to pay the differential duty along with fine and penalty in respect of the two Bills of Entry filed in Bangalore if it is found they are in anyway responsible to revenue loss. Such being the case, prohibiting the CHA from operating in the jurisdiction of Bangalore Commissionerate totally, in our opinion, is not justified. In fact, the provisions of Regulations 19 & 20 are considered, the suspension can continue till the enquiry is over, which, going by Regulation 20 can take up to 330 days. Once the suspending authority has decided that CHA can operate in other places, a prohibitory order, in our opinion, cannot be justified. Order of prohibition set aside subject to an undertaking to make good the loss of revenue, if any, caused by them because of their activity in Bangalore Customs till the enquiry and proceedings thereon are over. - Decided in favor of CHA. - C/27291/2013-DB - Final Order No. 20225/2014 - Dated:- 13-2-2014 - SHRI B.S.V. MURTHY AND ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d specific intelligence that some unscrupulous importers are importing and clearing dietary supplements in the guise of medicaments by resorting to classify them under CTH. 30045020 (10% of BCD) instead of CTH 21069099 (30% of BCD) CHA and that they are also clearing the said goods without payment of CVD on the basis of Retails Sale Price (RSP), as required under proviso to section 3(2) of the Customs Tariff Act, 1975 read with Section 4A of the Central Excise Act, 1944 and Central Excise Notification No. 049/2008-NT dated 24.12.2008, in order to evade payment of appropriate customs duties. Accordingly, they took up for investigation all the imports made by M/s Itspossible Marketing Ltd., New Delhi; M/s Health Code India Pvt. Ltd., Chennai; M/s Cell Code Nutrition (India) Pvt. Ltd., Chennai; M/s Health Care Impex, Chennai and M/s Health Care Impex (India) Pvt. Ltd., Chennai. 3. In this connection, searches were conducted and impugned goods with a total value of Rs. 13, 44, 09,035/- were seized form the premises of the said importers. Further, voluntary statements were recorded from Shri Sivasakthivelu, managing Director of M/s Health Code India Pvt. Ltd., Chennai and M/s Cell Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roduced his to Sh. Chinta Ravikumar, Marketing Director in M/s Health Code India Pvt. Ltd. and asked him to help them in getting some import consignment cleared; that Sh. Ravikumar produced an authorization from Sh. Ashwini Kaushik, Director of the said importer; that with respect to Bill of Entry No. 2571807 dated 12.1.2011 they declared the description of the goods as 005-010-859/CMC 1 oz IPM -Natural Concentrated Mineral Drops (30 ml) - No Shrink (Mineral substances) (For mfg purpose) and classified the goods under CTH 30045020; that the goods were cleared under RMS without assessment/examination on payment of duty of Rs. 2,13,631/-; that he agree that the goods were in ready to use retail packages and could be sold without any further activity on it. 7. When questioned as to why the goods were classified under CTH 30045020 when the export declaration filed by the US supplier showed the Tariff Heading as 2106.90.7090 and why the expressions mineral substances and for mfg purpose were added to the description, Sh. Kaleem in his voluntary statement dated 24.9.2012 interalia stated that in order to describe the goods in detail for classification of the goods, they enquire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ides for prohibition. The relevant Regulations are reproduced below: 13. Change in constitution of any firm or a company. - (1) In the case of any firm or a company, holding a licence under these regulations, any change in the constitution thereof shall be reported by such firm or company, as the case may be, to the Commissioner of Customs as early as possible, and any such firm or a company indicating such change shall make a fresh application to the said Commissioner of Customs within a period of sixty days from the date of such change for the grant of licence under regulation 7, and the Commissioner of Customs may, if there is nothing adverse against such firm or company, as the case may be, grant a fresh licence : Provided that if the existing firm or company moves an application for such changes, then such firm or company may be allowed to carry on the business of Customs Broker with the approval of the Commissioner of Customs till such time as a decision is taken on the fresh application of such firm or company. (2) Notwithstanding anything contained in sub-regulation (1), in case of any firm or a company where a licence has ceased to be in force because of the de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. (2) The Commissioner of Customs may, on receipt of the written statement from the Customs Broker, or where no such statement has been 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, as the case may be, to inquire into the grounds which are not admitted by the Customs Broker. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, 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 Broker, for the purpose of ascertaining the correct position. (4) The Customs Broker 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 dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ections of a Commissionerate has been provided for to enable the Commissioner who has given a permission to CHA to operate to prohibit him acting in any section or sections if does not fulfill any of the obligations under Regulation 13. After prohibition, a regular complaint/report will be made to the licensing authority to suspend the licence or revocation of licence as the case may be. Once the concerned Commissioner who has issued licence takes a final decision, as a result of proceedings against the CHA, the prohibitory order should reach logical end. Therefore, if the licence is revoked, naturally no action need be taken on the order issued by prohibiting a CHA from working. However, if the licence issuing authority does not revoke the licence of the CHA the prohibitory order will have to be withdrawn. According to the Regulations, prohibition should precede suspension and revocation of the licence after completion of proceedings and not other way. The observations made by the Commissioner while revoking the suspension in paragraph 24, in our opinion, are relevant and are reproduced below:- 24. Thus, prima facie, the allegations mentioned at Para 15(a) to 15(e) an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o precedent decisions before us to consider the issue. Therefore, we have no option but to take a holistic view after considering the relevant provisions of Regulations to come to a logical conclusion which, in our view, would meet the ends of justice. There is only one decision which has been cited by the appellant. This decision is of the Hon ble High Court of Madras in the case of A.M. Ahamed Co. Vs. Commissioner of Customs, Tuticorin [2013 (288) E.L.T. 497 (Mad.)]. In this case also, the challenge was only on the ground that no personal hearing was granted before passing the order of prohibition and therefore, the order was set aside and liberty was given to the Commissioner to pass a fresh order in accordance with law after giving opportunity of hearing to the petitioner. However, we are not in a position to follow this order since we have already noticed a prima facie finding of the Commissioner of Customs (Imports), the license issuing authority who, after revoking suspension, left the matter to the Commissioner of Customs, Bangalore with regard to prohibition. The Commissioner of Customs, Bangalore promptly prohibited the CHA from working in any of the sections in his jur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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