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TMI Blog2014 (7) TMI 671X X X X Extracts X X X X X X X X Extracts X X X X ..... sion in Ranadey Micronutrients v. Collector of Central Excise [1996 (9) TMI 124 - SUPREME COURT OF INDIA] has held that the Board circular issued by the Central Board of Excise and Customs is binding on the Revenue and they cannot be challenged on the ground of inconsistency with any statutory provisions. In the light of the legal position, it is not open to the appellant/Revenue to take a contra stand in respect of the time limit prescribed under Regulation 22 of CHALR, 2004. The compliance of procedure under Regulation 20 would not tantamount the compliance of Regulation under 22 and therefore, the substantial questions of law raised in these appeals are answered in negative against the appellant in these appeals. - Decided against the revenue. - C.M.A.Nos.1422 to 1426 of 2014 - - - Dated:- 27-6-2014 - N. Paul Vasanthakumar And M. Sathyanarayanan,JJ. For the Appellants : Mr. K. Mohanamurali, Standing Counsel for Customs Excise For the Respondent : R1- Tribunal Mr. R. Alwan for Mr. Murugappan JUDGMENT C.M.A.No.1422 of 2014 The official respondents in the appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT) South Zonal Bra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further mis-use/misconduct of CHA licence and accordingly, passed an order dated 23.06.2011, in exercise of powers conferred under Regulation 20(2) of CHALR, 2004, suspending the CHA licence of the second respondent with immediate effect until further orders and also indicated that the said order is issued without prejudice to any other action that may be taken against them and their employees/representatives etc., under the provisions of Customs Law or any other law for the time being in force and also granted an opportunity of personal hearing to the second respondent to present their case on 11.07.2011 at 11.00 hours in the Office of the Commissioner of Customs (Imports). 5. The second respondent, aggrieved by the said order of suspension, filed W.P.No.16180/2011 and it was disposed of on 28.07.2011 by directing the respondent/Department to issue notice again to the petitioner, fixing the date of hearing and on that date, grant liberty to the petitioner/second respondent herein to raise all the points before the authority concerned and thereafter the respondent therein was directed to pass orders within a period of two weeks. 6. The Commissioner of Customs (Imports), in c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... statement of defense and also to specify in the said statement whether the Customs House Agent desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs . (ii) The Customs Broker was issued with order of suspension wherein the violation of the provisions of regulations under CHALR 2004 was elaborately brought out and the Customs Broker was given an opportunity of personal hearing before the Commissioner of Customs. (iii) The Customs Broker along with their counsel appeared for the personal hearing and submitted a written submission during the course of personal heaering. (iv) The violations committed by the CHA were discussed in the order of suspension and after taking into consideration the written submission of the Customs Broker, the Commissioner of Customs passed an order continuing the suspension. (v) All these proceedings completed within 90 days from the date of receipt of investigation report. In view of the above, objectives of Regulation 22(1) of intimating the CHA of the violations committed by them and taking into consideration their submissions in writing and during personal hearing have been substantially ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... would be detrimental to the interest of the Revenue, has passed an order of suspension with immediate effect until further orders by invoking Regulation 20(2) of CHALR, 2004 and also granted opportunity of personal hearing to the authorized signatories of the CHAs and all of them made a challenge to the order of suspension by filing W.P.Nos.15000 to 15003/2012 and this Court had disposed of the said writ petitions on 02.07.2012, with a direction directing the respondents to follow the procedure contemplated under Regulation 22(2) of CHALR, 2004 within the stipulated time and till such disposal, the impugned order of suspension should be kept in abeyance. 11. The Commissioner of Customs (Imports), aggrieved by the above said common order passed in the writ petitions, filed W.A.Nos.2808 to 2811 of 2012 and a Division Bench of this Court, vide common judgment dated 04.01.2013, has disposed of the writ appeals by directing the respondents/CHAs to file an appeal under Section 129A(1) of the Customs Act, 1962 within a period of two weeks from the date of receipt of a copy of the order and with a further direction directing the Appellate Authority to dispose of the same on its own mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Agents Licencing Regulations, 2004 as well as the Customs House Agent Licencing Regulations, 2012 and 2013 and would submit that the Commissioner of Customs (Imports) in exercise of powers conferred under Regulation 20(2) of CHALR, 2004, has placed the respective respondents under suspension and thereafter, passed separate orders continuing the orders of suspension, but thereafter, failed to follow the procedure contemplated under Regulation 22 for suspending the order revoking the licence. It is the further submission of the learned counsel appearing for the second respondent in all these appeals that Regulation 22 also contemplates time limit for doing certain things and after passing orders continuing the order of suspension, the appellant herein/official respondents has failed to issue any notice to the respondents in these appeals within 90 days from the date of receipt of the offence report in accordance with Regulation 22(1) of CHALR, 2004, in spite of such a direction given in W.P.Nos.15000 to 15003/2012 and the said fact has been rightly taken into consideration by the CESTAT in allowing the appeals. It is also the submission of the learned counsel appearing for the seco ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edure for suspending or revoking licence under Regulation 20. (1) The Commissioner of Customs shall issue a notice in writing to the Customs House Agent within ninety days from the date of receipt of offence report, stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said Customs House Agent to submit within thirty days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs House Agent desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. Provided that the procedure prescribed in regulation 22 shall not apply in respect of the provisions contained in sub-regulation (2) to regulation 20. (2) The Commissioner of Customs may, on receipt of the written statement from the Customs House Agent, 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 to inquire into the grounds which are not admitted by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with Regulation 22(1) and (2) of CHALR, 2004. The appellant herein has invoked Regulation 20(2) of CHALR, 2004 and passed the order of suspension dated 23.06.2011 and by invoking Regulation 20(2) has also granted opportunity of personal hearing to the second respondent in the said appeal. The second respondent, namely M/s. Manjunatha Shipping Services Ltd., filed a writ petition in W.P.No.16180/2011 and it was disposed of by directing the respondent/Department to issue notice again to the petitioner, fixing the date of hearing and on that date, granted liberty to the petitioner/second respondent herein to raise all the points before the authority concerned and thereafter the respondent was directed to pass orders within a period of two weeks and accordingly, opportunity of personal hearing was granted on 18.08.2011 and the respondent did not appear and on 19.08.2011, had filed his written statement. The appellant, after considering the materials placed before him, has passed the order dated 02.09.2011, continuing the order of suspension without prejudice to any other action that may be against them. 18. Insofar as other appellants are concerned, similar orders of suspension c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .A.Nos.1423 to 1426/2014 were placed under suspension, vide separate orders dated 25.04.2012 and after affording them opportunity of hearing, the appellant passed final orders on 02.09.2011 in respect of the respondent in C.M.A.No.1422/2014 and on 23.05.2012 as against the respondents in C.M.A.Nos.1423 to 1426/2014 for continuing the orders of suspension. 21. It is the primordial submission of the learned counsel appearing for the appellant in these appeals/Revenue that the procedure followed for continuing the orders of suspension against the respondents in these appeals is nothing but the procedure contemplated under Regulation 22(1) of CHALR, 2004 and the stand taken by them that they should be issued with separate notices in terms of Regulations 22(1), on the face of it is unsustainable. It is the further submission of the learned counsel appearing for the appellant that the CESTAT mainly proceeded on the footing that the order passed by the learned Single Judge in W.P.Nos.15000 to 15003/2012 in respect of the respondents in C.M.A.Nos.1423 to 1426/2014 have not been complied with and further, in terms of Regulation 22(2), no notices have been issued to the respective respond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Court, it is not so for the reason that all the said orders came to be passed only under Regulation 20(2) of CHALR, 2004 and not under Regulation 22. 25. As per the notification and instruction dated 20.01.2014, time limit has been prescribed in respect of the procedure contemplated under Regulation 22 and as per sub-regulation (1) of Regulation 22, the Commissioner of Customs shall issue a notice in writing to CHA within 90 days from the date of receipt of offence report, stating the grounds on which it is proposed to suspend or revoke the licence and require the said CHA to submit within 30 days... In C.M.A.No.1422 of 2014, the enquiry report is dated 24.05.2011 and in respect of the respondents in C.M.A.Nos.1423 to 1426/2014, the enquiry/offence report is dated 20.03.2012 and earlier to the said notification, time limit was prescribed to CHAs to submit their response within 45 days to the notice issued under Regulation 22(1), but as per the above said notification, time limit has also been prescribed for the issuance of such notice also. The Tribunal has noted the fact that though the order of suspension came to be passed on 23.06.2011 in C.M.A.Nos.1422/2014 in respect o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been decided by the Board that a 'post-decisional hearing' should be given in all such cases so that errors apparent, if any, can be corrected and an opportunity for personal hearing is given to the aggrieved party. Further, Board has also prescribed certain time limits in cases warranting immediate suspension under Regulation 20(2). Accordingly, the investigating authority shall furnish its report to the Commissioner of Customs who had issued the CHA license (Licensing Authority), within thirty days of the detection of an offence. The Licensing authority shall take necessary immediate suspension action within fifteen days of the receipt of the report of the investigating authority. A post-decisional hearing shall be granted to the party within fifteen days from the date of his suspension. The Commissioner of Customs concerned shall issue an Adjudication Order, where it is possible to do so, within fifteen days from the date of personal hearing so granted by him. 27. The Hon'ble Supreme Court of India in the decision in Ranadey Micronutrients v. Collector of Central Excise [(1996) 10 SCC 387] has held that the Board circular issued by the Central Board of Excise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... are required to hold an enquiry and decide whether any action is required to be taken against the appellant and this is not a stage for the Tribunal to pre-judge the issue and influence the enquiry and subsequent proceedings and once the final order is passed, the appellants will have ample opportunity to approach the Tribunal, if they are aggrieved by the said order. 33. As already pointed out in the earlier paragraphs that the initial order of suspension under Regulation 20(2) and final order under Regulation 20(3) to continue the order of suspension are to be followed by an enquiry under Section 22 and admittedly, it has not been done so within the time limit prescribed. The orders of suspension passed against the second respondent in these appeals cannot continue and the concerned authority, namely the appellant herein has to take a decision whether to suspend or revoke the licence in terms of Regulation 22 and if he fails to do so, the only result is to set aside the impugned orders of initial suspension and its continuance and in the considered opinion of the Court, the Tribunal has rightly done that exercise by correct appreciation of facts and application of Regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X
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