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TMI Blog2015 (8) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... any; [B] That Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, direction or order thereby directing the Commissioner of Customs (Preventive), Jamnagar, his servant and agents to allow the petitioner Company to work as a Customs House Agent at Customs House, Pipavav and to allow the Petitioner Company to use all identity cards issued in their favour for allowing them to work as a CHA at Customs House, Pipavav. [C] Pending hearing and final disposal of the present petition, Your Lordships may be pleased to direct the Respondents, their servants agents to allow the petitioner Company to work as a CHA at Customs House, Pipavav thereby staying implementation and execution of order F.No.VIII/1308/ CusT/ CB/201415 dated 28.02.2015 9read with Corrigendum dated 11.03.2015) (Annexure - 'F') [D] An exparte adinterim relief in terms of Para 17(C) above may kindly be granted." 4. Pursuant to notice issued by this Court, respondent No. 2 has filed two affidavits in reply dated 06.05.2015 and 14.07.2015 opposing grant of any relief prayed by the petitioner. 5. Brief facts arise from the record are as under: 5.1. That one M/s. Fourcee Infrastru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to work as Customs House Agent at Customs House, Pipavav under regulation 21 of the Regulations, 2004. Hence, this petition. 6. Mr. Paresh M. Dave, learned advocate for the petitioner would submit that the petitioner has acted, as far as the import of the containers in the present case is concerned, only when the importer had requested the authority and shown his willingness to pay the duty since he wanted to sell the goods in the domestic market. He would submit that he has worked as the agent for filing of bill of entry with regard to the case, which was already imported by the said importer. He would further submit that the showcause notice has been issued on 29.01.2015, by which the noticees were granted 30 days time to file reply and by corrigendum dated 19.02.2015, the petitioner alone was called upon to file the reply to the addition of the certain alleged violation of the Regulations, 2004. However, the order of prohibition has been passed before expiry of 30 days even if the same is calculated from 29.01.2015 and therefore, the order impugned is bad in law. He would further submit that the respondent authority has not given an opportunity of hearing to the petitioner bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Agent in Pipavav area, in absence of any other allegations except nonpayment of customs duty by the importer. Therefore, he would submit that the order impugned is required to be quashed and set aside. 8. On the other hand, Mr.Y.N.Ravani, learned advocate for respondent No. 2 would submit that show cause notice dated 29.01.2015 and the order impugned are independent proceedings. He would further submit that Regulation 20 of the Regulations, 2004 empowers the Commissioner to suspend / revoke the licence prescribed under the provision of Regulation 22 of the Regulations, 2004. However, prohibiting from carrying out any activities as the Custom House Agent, there is no procedure prescribed and therefore, the order, which has been passed with a view to take immediate steps against the Agent, who has not followed the obligations referred in Regulations, 2013, the order has been passed. He would further submit that by the impugned order dated 28.02.2015, the authority had dealt with the case in detail and prohibited the petitioner from carrying out business activity as an Agent and therefore, there is no need to interfere with the order. By taking us through the affidavitsinreply ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lamboli, from M/s. Fourcee Infrastructure Equipment Pvt. Ltd., for the goods imported under Notification No. 104/1994, and for misusing the said Notification; [iii] the interest of the aforesaid Customs Duty should not be demanded under Section 28AA of the Customs Act, 1962; [iv] penalty should not be imposed on M/s. Fourcee Infrastructure Equipment Pvt. Ltd., under Section 112(a) as well as Section 114A of Customs Act, 1962; [v] penalty should not be imposed on Shri Rajesh Vihala, Chairman of M/s. Fourcee Infrastructure Equipment Pvt. Ltd., under Section 112(a) of the Customs Act, 1962; and [vi] penalty should not be imposed on the Customs house agent, M/s. SSS Sai Shipping lines, under Section 114A of the Customs Act, 1962 and separate action for violating Regulation 13(e) of Customs House Agents Licensing Regulations, 2004 should not be initiated." 11. So far as Para - 16 of the notice is concerned, the present petitioner was called upon to reply for alleged breach of regulation 13(e) of the Regulations, 2004. The petitioner was also asked to reply for not imposing penalty under the provision of Section 114 of the Customs Act. 12. The corrigendum dated 09.02.2015 reads as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms or Assistant Commissioner of Customs and he shall exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage. As mentioned above, the CHA failed not only to guide the party to pay up the Customs duty within the stipulated time period of filing the Bills of entry but also failed to bring the matter to the notice of the department, which resulted in loss of revenue to the extent of Rs. 4,14,07,451/. For the Acts ommission and commissioner on the part of CHA, they rendered themselves liable for penalty under Section 114A of the Customs Act, 1962. Also separate action against the CHA, M/s. SSS Sai Shipping Lines, should be initiated for violating Regulation 13(d) and 13(e) of the Customs House Agents Licensing Regulations, 2004 (now Regulation 11(d) and 11(e) of the Customs Brokers Licensing Regulations, 2013)." (ii) In Paragraph 16(iv) of Show Cause Notice No.VIII/10240/ Commnr/O&A/2014 dated 29.01.2015 issued by the Commissioner, Customs, Jamnagar for the words"( vi) penalty should not be imposed on the Customs house agent, M/s. SSS Sai Shipping lines, under Section 114A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation 13(d) and 13(e) of the CHALR, 2004 and thereby rendered themselves liable for action under the provisions of CHALR, 2004. 14. In view of the above, I hold htat the intimation of M/s. SSS Sai Shipping Pvt. Ltd.A304, Classique Centre, Plot No. 26, Mahal Industrial Estate, Off Mahakali Cross Road, Andheri(E), Mumbai based on their Regular CHA Licence No. 11/1830 valid upto 17.12.2022 issued by the Commissioner of Customs (General), Mumbai, registered under Regulation 7(2) of CBLAR, 2013 (Regulation 9(2) of CHALR, 2004) to work as CHA at Customs House Pipavav is liable to be quashed and the said CHA is required to be prohibited to work at the Customs House Pipavav in terms of Regulation 21 of the CHALR, 2004." 14. If the regulation 13(d) and 13(e) of the Regulations, 2004 are perused, the question with regard to the alleged breach of obligations by the petitioner is pending before the authority pursuant to show cause notice dated 29.01.2015 and relying the same ground, which is yet not been finalized, the impugned order has been passed and the petitioner has been prohibited to work as Customs House Agent. The operative part of the order, which reads as under: "1 I prohibit ..... 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