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TMI Blog2016 (8) TMI 672X X X X Extracts X X X X X X X X Extracts X X X X ..... pellant under Order-in-Original dated 16.05.2016 is not justified and is set aside - Decided against the revenue. - Miscellaneous Application No.MA-75487/16 Stay Petition No.SP-75488/16, Appeal No.C-76231/16 - ORDER NO.MO/75565, SO/75566, FO/A/75803/2016 - Dated:- 8-8-2016 - SHRI H. K. THAKUR, MEMBER (TECHNICAL) And SHRI P.K.CHOUDHARY, MEMBER (JUDICIAL) Shri S.K.Mehta, Advocate for the Appellant Shri S.K.Naskar, AC(AR) for the Respondent ORDER Per Shri H. K. Thakur The present Miscellaneous Application for early hearing of Stay Petition and Appeal have been filed by the appellant with respect to Order-in-Original No.KOL/CUS/AIRPORT/ADMN/10/2016 dated 16.05.2016 passed by the Principal Commissioner of Customs(Airport ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . That on 03.07.2011 a show cause notice was issued by Customs Authorities at Mumbai to the appellant with respect to B/E No.2516198 dated 01.01.2011 for the misdeeds done by Mr.Samir Poddar and Mr.Ravi Kotian. That by an order dated 22.06.2011 Commissioner of Customs (General) Mumbai prohibited the appellant from transacting any CHA business in Mumbai Customs Zones I, II III under Regulation-21 of the CHALR, 2004. That on 07.07.2011 by an order No.190/2011, Commissioner of Customs, Kolkata suspended the CHA licence of the appellant under Regulation 20 (2) of CHALR, 2004, which was confirmed by Commissioner of Customs, Kolkata vide Order-in-Original No.KOL/CUS/AIRPORT/ADMN/4/2011 dated 02.08.2011 issued on 04.08.2011. That on an appeal CE ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vious to B/E No.2516198 dated 01.01.2011. That the said show cause notice dated 25.03.2015 was Adjudicated by Commissioner of Customs, Mumbai by an Order-in-Original dated 23.03.2016 under which a penalty of ₹ 5.00 Lakh is imposed upon the appellant against which appellant has preferred an appeal before CESTAT, Mumbai. That on receipt of Order-in-Original dated 23.03.2016 CC(Customs), Kolkata by Order No.05/2016 dated 22.04.2016 suspended appellant s CHA licence under Regulation 19(2) of CBLR, 2013 which was further confirmed by Order-in-Original dated 16.05.2016 against which the present appeal has been filed. 2.4 Learned Advocate of the appellant argued that as per the provisions of Section 159 of the Customs Act, 1962; read with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceived by CC, Customs(Kolkata) on 08.04.2016 and suspension was done on 19.04.2016 as discussed by Adjudicating authority in para-33 of the Order-in-Original dated 16.05.2016. That against this Order-in-Original appellant approached High Court by filing WP No.479 of 2016 and by a final order dated 13.07.2016 Calcutta High Court dismissed the WP of the appellant with the direction to approach CESTAT to redress their grievance. That even if no action under CBLR, 2013 can be taken then also department can suitably amend the show cause notice for revocation of CHA licence for taking action under CHALR, 2004. Learned AR, therefore, strongly defended the confirmation Order-in-Original dated 16.05.2016 passed by the Adjudicating authority. 4. H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hing not in force or existing at the time at which the amendment, repeal, supersession or rescinding takes effect; or (b) affect the previous operation of any rule, regulation, notification or order so amended, repealed, superseded or rescinded or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any rule, regulation, notification or order so amended, repealed, superseded or rescinded; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under or in violation of any rule, regulation, notification or order so amended, repealed, superseded or rescinded; (e) affect any investigation, legal pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has been ordered or confirmed is not new. Appellant raised all these issues before Adjudicating authority during the course of personal hearing on 04.05.2016 but Adjudicating authority remained silent on these points. Accordingly, it is held that for a cause of action happened before introduction of CBLR, 2013, no action could have been taken under CBLR, 2013. Confirmation of suspension made by the Adjudicating authority under Order-in-Original dated 16.05.2016 is bad in law and is required to be set aside. It is also held that for the same cause of action a second proceedings cannot be initiated when the matter in the earlier proceedings of suspension and revocation of appellant s licence are pending before Calcutta High Court. It is not c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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