9911796707
TMI Blog2014 (11) TMI 695X X X X Extracts X X X X X X X X Extracts X X X X ..... he present appeals against both the orders. 3. The Ld. Advocate on behalf of the appellant submits that offence report was furnished to the appellant on 20.12.2012. The order under Regulation 20 (2) was issued on 21.1.2013 and the order under Regulation 20 (3) was issued on 15.2.2013 for continuation of suspension order. Thereafter, the appellant received a copy of letter dt. 14.3.2013 forwarded to them by the Asst. Commissioner of Customs(CHA) informing that the Deputy Commissioner of Customs (Group-4) was nominated as Enquiry Officer. He submits that no show cause notice was issued as required under Regulation 20 (2) of the said Regulation, 2004. After one year, by letter dt.29.3.2014, the Enquiry Officer informed that the suspension order may be treated as show cause notice. He submits that suspension order cannot be treated as show cause notice and there is a clear violation of Regulation 22. So suspension order should be set aside on this ground alone. He further submits that suspension order was not issued within 15 days from the date of receipt of the offence report. He further submits that allegations made in the suspension order is a mere technical nature in so far ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said letter dt. 14.3.2013 is reproduced below :- " The Commissioner of Customs (Imports) has appointed you as Inquiry Officer in the case of CHA M/s. Eltece Associates. 2. Hence, you are requested to conduct the inquiry in the case under Regulation 22 of the Customs House Agents Licensing Regulations (CHALR), 2004 and submit your report to the Commissioner of Customs (Imports) within 90 days from the date of receipt of the letter. 3. Part file containing copies of relied upon documents of the case (correspondence vide P.No.01 to 98, Note Side P.No.9) is forwarded herewith. Please acknowledge receipt." 7. For better appreciation of the case, we reproduce below the relation provisions of CHALR, 2004 as under :- REGULATION 20.?SUSPENSION OR REVOCATION OF LICENCE.- (1) The Commissioner of Customs may, subject to the provisions of regulation 22, revoke the licence of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part or whole of security, on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Customs House Agent. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs 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 House Agent, for the purpose of ascertaining the correct position. (4) The Customs House Agent 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 declines to examine any per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation 22 and a final view in the matter of revocation of license is to be taken. 10. It may be noted that investigation to unearth evidence required to issue SCN and inquiry as envisaged in Regulation 22(1) are two distinct processes. Investigation is to be done by Revenue using its powers to unearth documents and to record statements which process apparently has been done in this case substantially even before the suspension order was passed and investigating authority had given report and on that basis suspension order was passed. Now, the next stage is the enquiry as envisaged in Regulation 22 (1). This can commence only after issue of a Show Cause Notice, as envisaged in Regulation 22(1), which has not been done in this case so far. We are of the view that where the immediate suspension has been ordered under the provisions Regulation 20(2) and thereafter the procedure would follow procedure for enquiry under Regulation 22(1), which starts from the issue of notice, has to be followed. We have already discussed above that such enquiry has to start with the issue of Show Cause Notice and such process is diffe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the receipt of this letter and you may also inform as to whether you wish to be heard in person before finalising the case." 10. The Ld. A.R submits that Regulation 22 (1) would not applicable in the case of suspension of license under Regulation 20 of the said Regulation. It is seen that the Tribunal in the case of Manjunath Shipping Services (supra) had observed that after suspension order under Regulation 20 (2) / 20 (3) of the said Regulation, it would be followed by the enquiry proceeding under Regulation 22 of the said Regulation. We find that Regulation 22 (1) clearly specified the time frame of ninety days to issue show cause notice from the date of receipt of the order by the Commissioner of Customs. It is noticed that after one year of the suspension order, the Enquiry Officer is informing to treat the suspension order as show cause notice, which is clearly contrary to provision of Regulation 22 (1) of the said Regulation. We find that by order/judgment dated 14.03.2014 in WP No. 8409/2013 in the case of Shri R. Sandosh Kumar, the Hon'ble Madras High Court set aside the enquiry proceedings. The relevant portion of the said decision is reproduced below:- &nbs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 22(1) of the Regulations. Therefore, in the present case, as rightly indicated by the learned counsel for the petitioner with the help of the order passed by this Court in W.P. (MD) No. 16351 of 2012 dated 4.1.2013, where this Court was inclined to quash a similar proceeding finding fault with the respondent that there was a delay of seven days in issuing the show cause notice, this Court has no hesitation to interfere with the impugned proceedings, for the simple reason that in this case, there was no show cause notice issued till now. Therefore, for the reasons mentioned above, the writ petitioner is entitled to succeed. Accordingly, the impugned proceedings are set aside and the writ petition is allowed. Consequently, M.P.No, 1 & 2 of 2013 are closed. No costs. 11. In the present case, it is apparent from the record that after issue of the suspension order dt. 21.1.2013, under Regulation 20 (2), no show cause notice was issued by the Commissioner of Customs under Regulation 22 (1). In the light of decision of Hon'ble High Court in the afore cited case, we set aside the impugned orders and the appeals filed by the appellants are allowed. After considering the submission of Ld. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
