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TMI Blog2015 (12) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... ear Nov 2013, till date no proceedings initiated nor any SCN issued to importers and other persons for the alleged misdeclaration of goods for evasion of anti-dumping duty. Only after issuance of SCN under Customs Act where the charges are brought out only, then authority can allege whether IE code belongs to another person and who is actual importer etc. and the role played by appellant leading to evasion of ADD can be taken as ground for taking any action under CHALR. We failed to understand the reasons for initiating revocation of CHA licence based on the alleged contravention of lending of IE code when no SCN was issued under Customs Act. - SCN itself is premeditated one and violated principles of natural justice. In view of the High Court's order on this account also, the impugned order is liable to be set aside. - Decided in favour of appellant. - Appeal No. C/41892/2015 - FINAL ORDER No.41677/2015 - Dated:- 7-12-2015 - Shri R. Periasami, Technical Member and Shri P.K. Choudhary, Judicial Member For the Petitioner : Shri Hari Radhakrishnan, Advocate For the Respondent : Shri Kailash Chandra Jena, ADC (AR) ORDER Per R. Periasami Pursuant to Hon' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s for evasion of anti-dumping duty nor any seizure of goods. No SCN was issued within 6 months from the date of suspension. He submits that entire revocation of licence was made only on the ground of lending of IE code. He drew our attention to para 21.2 , 21.4 of OIO where the Inquiry Report was brought out and submits that Inquiry Officer dropped the proceedings and the Commissioner has not agreed with the findings of the Inquiry Officer and held that charges proved. He further submits that SCN is pre-mediated and the allegation in para-9 of SCN itself is a finding at the notice stage itself. He also referred to para-13 of the SCN. He submits that SCN is liable to be set aside on this count as the department has already made up their mind and given a finding in the SCN itself. He relied an unreported judgement of High Court dt. 15.9.2014 in W.P. No.21941/2014 in the case of Bharat Marine Co. Vs CC (Seaport-Import), Chennai. He also relied the Hon'ble Supreme Court order in the case of Oryx Fisheries Private Ltd. Vs UOI - 2011 (266) ELT 422 (SC). 4. On the merits of the case, he submits that the allegation made against the appellant is that he failed to obtain authorization ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of CHA licence and revocation of licence originated on account of investigations initiated by DRI based on the intelligence on the alleged import of PVC flex banners in respect of seven IEC holders i.e. including Jeyam Impex and 7 others who filed various Bills of Entries for import of PVC flex banners. It is alleged that IE codes of these firms were lent to persons to import the goods who in turn misdeclared the country of origin as Malaysia to evade anti-dumping duty as the said goods are actually originated from China and not from Malaysia. During the investigation proceedings, the appellant's CHA licence was suspended on 18.11.2013 and the same was continued vide another order dt. 12.12.2013. On perusal of the findings in the order, we find that the appellant failed to inform the department of filing of IE code who are not IEC holders and also failed to verify KYC norms. 7. On merits of the case, we find that even though the investigation was completed in the year Nov 2013, till date no proceedings initiated nor any SCN issued to importers and other persons for the alleged misdeclaration of goods for evasion of anti-dumping duty. Only after issuance of SCN under Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refore, there is no explanation much less a justification for initiation of proceedings in the year 2014 against the petitioner and that too for prohibition from operation or working at the Mumbai Customs Station. The ratio of the above decision squarely applies to this case, as in the present case the imports were made in the year 2011-12 and the DRI initiated investigation and without issue of SCN or adjudication proceedings initiated against the appellant under Customs Act for the very same violations and the appellant's licence has been suspended and thereafter revoked the licence without waiting for issue of SCN under the Customs Act. We also find there is no seizure of goods in the present case. 8. On the merits of the case, the only allegation made against the appellant is that appellant has not verified IE code and lent IE code for import of the said goods. In the present case, there is no SCN issued alleging who is the actual importer therefore adjudicating authority cannot know that the appellant has lent IE code to any person and the adjudicating authority cannot proceed merely on the basis of investigation report received from the DRI for suspension of licen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. Consequently, the connected miscellaneous petition is closed. No costs. The ratio of above High Court order squarely applies to the present case as we find that vide para 9 and 13 of the SCN dt. 12.12.2013, the adjudicating authority has made up his mind on his findings. Therefore SCN itself is premeditated one and violated principles of natural justice. In view of the High Court's order (supra) on this account also, the impugned order is liable to be set aside. 10. In view of the ratio of Hon'ble Bombay and Madras High Court decisions (supra), we find that the revocation of appellant-CHA licence is not justified, particularly taking into account that when no proceedings were initiated under Customs Act against any of the importers and other persons on the alleged lending of IE code and also taking into consideration the appellant has been under suspension since Nov 2013. Accordingly, the impugned order of revocation of licence is set aside and the appeal is allowed. 11. Before parting with the case, it is made clear this order is without prejudice to any action that may be taken against appellant under the Customs Act by Revenue. (Dictated and pronounced i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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