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TMI Blog2014 (7) TMI 729X X X X Extracts X X X X X X X X Extracts X X X X ..... f the impugned order dated 19.02.2014, especially when the statutory appeal filed by the petitioner is pending before the Appellate Tribunal, this Court is of the view that the impugned order dated 19.02.2014 shall be stayed till such time the appellate Tribunal take up the appeal and decide the appeal on its own merits. - Decided in favor of petitioner. - Writ Petition No. 6748 of 2014 and M.P. No. 1 of 2014 - - - Dated:- 11-6-2014 - B. Rajendran,JJ. For the Petitioner : Mr. S. Murugappan For the Respondent : Mr. Ramakrishna Reddy ORDER The petitioner has filed this writ petition challenging the order dated 19.02.2014 of the respondent by which the respondent ordered for continuation of suspension of the licence of the petitioner as custom broker and directed the petitioner to surrender the original licence book and all customs ID cards issued to them to Custom Broker's Section forthwith. 2. According to the petitioner, the petitioner firm has been issued the customs broker licence by the respondent and based on such licence, the petitioner firm is authorised to function as a customs broker for handling and processing import and export documents file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the above said three essential ingredients, the respondent is not justified in invoking Regulation 19 of the Customs Act. It is further contended that there is no indication in the impugned order as to how this is an appropriate case for overlooking the normal process stipulated under Regulation 20 and why action is being taken under Rule 19. The alleged incident took place during the year 2011 and resorting to suspend the licence of the petitioner after two years is unwarranted. In this context, the learned counsel for the petitioner relied on the decision of the Division Bench of the Delhi High Court in the case of Falcon Air Cargo Travels (P) Ltd., vs. Union of India reported in 2002 (140) ELT 8 (Delhi) wherein the Division Bench of the Delhi High Court held that while considering the claim of the importer for revocation of suspension of licence, the authorities have to keep in mind the consequences of such action and the proportionality of the punishment with reference to the alleged omission. Relying on this decision, it is submitted by the learned counsel for the petitioner that in this case, in the show cause notice, the respondent only proposed to impose penalty on the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e by invoking Regulation 19 (2) of the Customs Broker Licensing Regulation, 2013. According to the petitioner, as per Regulation 19, the respondent has to satisfy as to the fulfilment of three ingredients namely (a) whether it is an appropriate case for invoking the provisions of Regulation 19 (b) whether immediate action is necessary to suspend the licence of a customs broker when an enquiry against such agent is pending or contemplated and (c) where a licence is suspended, the respondent shall, within 15 days of such suspension, ought to have given an opportunity of hearing to the customs broker and may thereafter pass such order for revoking the licence or continuing the suspension but it was not followed in this case. According to the counsel for petitioner, the impugned order ordering to continue the suspension has been passed without affording an opportunity of hearing. It is also stated that there is no loss caused to the department on account of the alleged act of the petitioner, while so, the impugned order is unnecessary. 7. It is seen from the records that for the show cause notice dated 23.10.2013, a reply dated 18.11.2013 was given by the petitioner and sought for p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ediate suspension of the CHA licence. A close reading of these provisions would disclose that the power to direct immediate action is confined to taking it within 15 days from the date of receipt of a report from the investigating authority. In this case the report of the investigating agency was received on 09.03.2011, a fact which is borne out in the order of the Tribunal and contentions of the parties before us. Concededly the Commissioner did not seek recourse to the power under Regulation 20 (2). The immediacy or urgency of the situation was allowed to lapse and eventually the Commissioner issued the suspension order on 10.10.2011, even then, the powere invoked was Regulation 20 (1). This was later modified through a corrigendum. However, the fact remains that this power could not have been taken recourse to after the lapse of 15 days which is underlined by a 'non-obstante' clause in Regulation 20 (2) and further underlined by the proviso to Regulation 22 (1). The net result is that where immediate suspension is called for, the Commissioner has to take swift action and cannot wait, if he does so suspension can be made only after the full inquiry is held as provided by ..... X X X X Extracts X X X X X X X X Extracts X X X X
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