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TMI Blog2015 (7) TMI 849X X X X Extracts X X X X X X X X Extracts X X X X ..... ill in progress” and no enquiry under Regulation 20 was initiated till date and such order can not be sustained and is liable to be set-aside. - Decided in favour of appellant. - Appeal No. : C/10075,10537/2015, [Application No C/EH/10345/2015] - ORDER No. A/10593-10594/2015 - Dated:- 12-5-2015 - Mr. P.K. Das and Mr. H.K. Thakur, JJ. For The Appellant : Shri Hardik Modh, Advocate For The Respondent : Shri T.K. Sikdar, Authorised Representative Per : Mr. P.K. Das; The appellant filed appeal No. C/10075/2015 against order dated 15.10.2014, where the Commissioner of Customs suspended Customs House Broker License, with immediate effect, issued under Regulation 19 (1) of Customs Brokers Licensing Regulation, 2013 (in short Regulation 2013). The appellant also filed appeal No. C/10537/2015 against order dated 03.3.2015 passed by the Commissioner of Customs for continuation of suspension of Customs Brokers License under Regulation 19 (2) of the said Regulation, 2013, until further orders. The appellant filed application for early hearing of the appeal No. 10537/2015. As the issue involved in these appeals is common, we take up both the appeals together for disposal. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... els (P) Limited vs. UOI - 2002 (140) ELT 8 (Del.) and the decision of the Tribunal in the case of D. Thimmeswara Rao vs. Commissioner of Customs, (Sea Import) - 2014 (313) ELT 147 (Tri. Chennai). 4. Learned Authorised Representative for the Revenue submits that the appellant committed a grave offence which was detected by investigation and therefore, there is delay in submitting offence report. He further submits that the delay in passing final suspension order under Regulation 19 (2) is not fatal and therefore, the suspension order should not be set-aside. He also submits that the action under Regulation 20 (1) is not linked with the suspension order under Regulation 19 of the Regulation 2013. It is submitted that issuing notice for revocation of license under Regulation 20 is separate proceedings. 5. After hearing both the sides and on perusal of the records, we find that M/s. Sun Enterprises Limited imported a consignment and filed bills of entry on 09.01.2014. Custom Officers detected the alleged mis-declaration of the goods. Statements of importer and the appellant were recorded in the month of January and February 2014. Learned Advocate submits that a statement was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner 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 declines to examine any person on the grounds that his evidence is not relevant or materi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sioner to pass an order within 30 days from the date of order under Regulation 19(1) to the Customs Broker for continuation of suspension order. The action under Regulation 19 is linked with Regulation 20 (1). 8. In the present case, we find that the offence was committed on 09.01.2014 and the offence report was submitted on 15.10.2014 and the suspension order was issued on the same day under Regulation 19(1) of the said Regulation and also fixed a post decisional hearing on 30.10.2014. But, the Commissioner of Customs had not issued order for continuation of suspension under Regulation 19(2) within the stipulated period. Proviso to Regulation 19 (1) provides that after passing an order for continuing of the suspension, the further procedure thereafter shall be followed in Regulation 20. Learned Advocate submitted that no notice was issued till date by the Commissioner of Customs under Regulation 20(1) of the Regulation 2013. On a query from the Bench, learned Authorised Representative submits that he had written to the Commissioner of Customs whether notice was issued but no reply has yet been received. Learned Advocate categorically submitted before the Bench that they have no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wo 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 of 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 different from investigative process required to unearth evidences. Furthermore, in our considered view, the impugned order dated 03.03.2015 was passed without considering the submissions of the Customs Broker, after about more than five months, is contrary to Regulation 19(2) and s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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