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TMI Blog2015 (1) TMI 444X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Customs immediately issued suspension order dt. 25.4.2012 suspending CHA Licence under Regulation 20 (2) of CHALR 2004. Subsequently, by the impugned order dt. 24.5.2012, the Commissioner of Customs (Imports) in exercise of power conferred under the provisions of Regulation 20 (3) of CHALR, 2004 ordered continuation of the suspension of CHA licence. 3. The Ld. Advocate submits that the alleged incident took place in 2009 and the CHA section received information on 11.4.2011 and after one year on 10.4.2012, Diu has given report. So, there is no reason to invoke Regulation 20 (2) of Regulation for immediate suspension. Apart from that, no show cause notice was issued under Regulation 22 (1) of Regulation. The Tribunal in several decisions on identical ground set aside the suspension order. He particularly relied upon the decision of the Tribunal in the case of D. Thimmeswara Rao & Others Vs CC (Port-Import) vide Final Order No.40566-40569/2013 dt. 12.11.2013 the suspension order was set aside. Ld. Advocate submits the Tribunal's order dt. 12.11.2012 was upheld by the Hon'ble Madras High Court in C.M.A.No.1422 to 1426 of 2014 judgement dt. 27.6.2014. 4. Ld. AR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; 6. It is significant to note that both the suspension orders dated 25.4.2012 and 23.5.2012 were issued under Regulation 20(2) and 20(3) respectively in the perspective of an enquiry is pending or contemplated against CHA. The procedure of enquiry is envisaged under Regulation 22 and the relevant provisions of the said Regulation are reproduced below:- REGULATION 22. PROCEDURE 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Commissioner of Customs to suspend the licence of a CHA in emergent situations without following the procedure under Regulation 22(1). It is very obvious that immediate suspension of license is permitted only when an enquiry is pending is contemplated. The non obstante clause Regulation 20(2) makes an exception only in the matter of suspension and not in the matter of revocation. So, it is implied that such inquiry has to be completed, within the time frame prescribed in various sub-regulations of Regulation 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... years of suspension order. Hence it is depending upon the facts and circumstances of each case. In the present case, suspension orders were issued on 25.4.2012 under Regulation 20(2) and despite the order dated 2.7.2012 of the Hon'ble Single Judge of the High Court, no notice was issued till date. In our considered view, the decision of the Tribunal in the case of Manjunatha Shipping Services (supra) would apply in the facts and circumstances of the present appeals. . 10. The learned AR for Revenue relied upon the decision of the Tribunal in the case of Fast Track International (supra). In that case, the Tribunal observed that there may be cases for interfering with the order of suspension only if there is undue delay in conduct of further investigation and further proceedings and when the delay not been attributable to the appellant. It is further observed that no details are available on further proceedings and the reason or delay, if any. In the present case, we find that the appellants requested to issue of notice as required under Regulation 22(1) of the CHALR, 2004 despite the order of the Hon'ble High Court, no notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neous Appeals are dismissed confirming the orders dated 10.10.2013 in Final Order No.40461/2013 and the orders dated 12.11.2013 in Final Order No.40566 to 40569 of 2013 respectively on the file of the Customs, Excise and Service Tax Appellate Tribunal, Chennai Bench, Chennai. No costs. Consequently, the connected miscellaneous petition is closed." 7. We find that Tribunal in the case of Manjunath Shipping Services Vs Commissioner of Customs (Imports), Chennai vide Final Order No.40461/2013 dated 10.10.2013 on the identical situation set aside suspension order, which was upheld by the Hon'ble Madras High Court. In the present case, initial suspension order dated 11.5.2012 was issued under Regulation 20 (2) of CHALR, 2004 and which was continued by the impugned order dt. 6.6.2012 issued under Regulation 20 (3) of CHALR, 2004. It is seen that no proceeding was initiated under Regulation 22 of CHALR, 2004 in so far as no show cause notice was issued to the appellant under Regulation 22 (1) of Regulations 2004, which is required to be issued within 90 days from the date of receipt of offence report. 8. In view of the above discussion and the decision of Hon'ble High Court and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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