9911796707
TMI Blog2019 (1) TMI 384X X X X Extracts X X X X X X X X Extracts X X X X ..... , perusal of Customs House Agents Licencing Regulations 2004 discloses that Regulation 20(1) of the CHALR 2004 provides for revocation of CHA licence granted to a CHA company after following the procedure prescribed under Regulation 22. Regulation 20(2) r/w 20(3) provides for immediate suspension of licence without following the procedures prescribed under Regulation 22. The proceeding under Regulation 20(1) and Regulation 20(2) are independent of one another by virtue of the non-obstante clause in Regulation 20(2). According to the petitioner, when any action is proposed under Regulation 20(1), then procedures prescribed under clauses (1) to (8) of Regulation 22 has to be necessarily followed and as per Regulation 22(1), the Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst the petitioner on the ground that during the period 13.12.2005 to 04.04.2006, 42 shipping bills and 17 shipping bills were filed by the petitioner on behalf of M/s.Ajay Exports and M/s.Sunitha Metal Corporation, Chennai, declaring the goods as ''stainless steel utensils''. It was further alleged that a partner of the petitioner's firm had signed the blank shipping bills and Annexures for monetary benefit and allowed one Shri.T.R.Boopalan to handle the exports. The respondent alleged that these two companies with a fraudulent intention of claiming undue duty drawback, had made the export with lesser quantity of utensils but declaring the weight nearly five to eight times more than the actual weight. The respondent fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /s.Sunitha Metal Corporation, Chennai. The shipping bills were filed during the year December 2005 to April 2006 by the above exporters and due to prohibition order of Chennai Customs, the Commissioner of Customs, Tuticorin, respondent herein, without issuing any show cause notice as envisaged under Regulation 22 of the CHALR 2004 nor granting an opportunity of personal hearing, had passed an order on 04.03.2011 suspending the operation of CHA licence of the petitioner in terms of Regulation 20(2) of CHALR 2004 with immediate effect. Challenging the same, the petitioner had filed W.P(MD)No.13469 of 2012, and respondent therein filed counter confirming that the impugned export took place during the period from 13.12.2005 to 04.04.2006 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner and the same was accepted by the Assistant Commissioner of Customs, Tuticorin, before this Court. This being so, any show cause notice under Regulation 20(1) of CHALR should have been issued before 30th of November 2010. In this context, decision of the Hon'ble Supreme Court in Babu Verghese vs. Bar Council of Kerala (AIR 1999 SC 1281) is relied upon, wherein, it has been held that where a power is given to do a certain thing in a certain way, the thing must be done in that way and not otherwise. Therefore, it is contended that the respondent has jurisdiction only for 90 days from the date of offence report to issue a show cause notice to revoke CHA licence under Regulation 20(1) of CHALR 2004 and hence, the impugned show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to (8) of Regulation 22 has to be necessarily followed and as per Regulation 22(1), the Commissioner of Customs shall issue a notice in writing to the Custom House Agent within 90 days from the date of receipt of offence report. 9.Before going to decide the issue involved in this writ petition, it is relevant to extract below Regulation 22 of CHALR 2004:- ''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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the limitation period of 90 days from the date of offence report. 44.Since the offence report was dated 22.09.2010 and the show cause notice, admittedly, was issued only on 18.11.2011, there can be no doubt that the said show cause notice was issued well beyond the period of limitation of 90 days. 45.Whatever be the claim and counter claim on the merits, in this appeal can, in our view, they get shadowed by the failure on the part of the Revenue in not acting in time by issuing the show cause notice, within the period as contemplated under Regulation 22(1) of the CHALR 2004. 46.Therefore, we are of the considered view, and in fact have no hesitation to hold so that, the Revenue has not issued the show cause notice dated 18.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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