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TMI Blog2019 (12) TMI 294X X X X Extracts X X X X X X X X Extracts X X X X ..... tions, 2018 (erstwhile regulation 20 of CBLR, 2013). 1.2 The early hearing in the matter was allowed vide order No M/85594-85595/2019 dated 30.07.2019. 2.1 On the basis of Offence report issued by the Commissioner of Customs (Export), ACC, Sahar, Mumbai vide F No SIIB/Gen-69/201-19 ACC(X)/SIIB/INV-04/2018- 19 ACC(X) dated 2.11.2018, Commissioner General has vide Order No 81/2018-19 dated 11.01.2019, exercising the powers under Regulation 16 (1) of Customs Broker Licensing Regulations, 2018, suspended the license of the Appellant. 2.2 Appellant had filed Shipping Bill No 8616721 dated 31.10.2018 on behalf of exporter namely M/s Cube Impex (IEC No BPPPA5593F). SIIB started investigation in respect of the said Shipping Bill, for a case of illegal export of contraband substance purported to be ketamine under the provisions of NDPS Act, 1985 read with the provisions of Customs Act, 1962. 2.3 On the basis of the statements of Shri Mukesh Prabhu Desai, Director and Shri Nilesh Nimbalkar, employee of the Appellant, it was alleged that the Appellant has failed in fulfilling the obligations cast on him under the Customs Broker Licensing Regulations, 2018 and has thus contravened the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l has held that the action of suspension is only a preliminary and interim measure. Subsequently the authorities are required to hold an Inquiry and decide whether any action s required to be taken against the appellants. This is not a stage for the Tribunal to prejudge the issue and influence the inquiry and subsequent proceedings. (iii) The judgement dated 0.11.2012 of Hon'ble CESTAT, Mumbai Bench vide order No S/1275/12/CSTB/C-I; A/682/12/CSTB/C-I dated 8.11.2012, wherein the Hon'ble Tribunal had dismissed the appeal filed by M/s Dharamdas & Co, Customs House Agent, against continuation of suspension of license." 4.3 From the findings recorded in the impugned order we are not in position to decipher any cause of immediate action or continued action of suspension. While passing the order, for continued suspension Commissioner has relied upon the decision of Punjab Haryana High Court, which was the order passed by the Hon'ble High Court, in case of immediate action of suspension and not in the proceedings subsequent to immediate suspension for continuation of suspension. The relevant paragraphs of the aid decision are reproduced below: "5.We are unable to accept the submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... considered the submissions from both sides as well as the case records. The appeal is against the suspension of the CHA licence of the appellants under Regulation 20(2) of the CHALR, 2004. The said Regulation allows the jurisdictional Commissioner to suspend the CHA licence where an immediate action is necessary. The timelimit specified in the said Regulation is 15 days from the date of receipt of the investigation report. The appellants have challenged, in this case, the impugned suspension order on the ground that the department was aware of the offence much earlier as the DRI authorities had issued the SCN on 16-9-2011 whereas the suspension has been ordered on 17-10-2011 which is beyond the 15 days period. During the course of hearing, ld. SDR was directed to verify and intimate as to when the report of investigating agency was received by the Commissioner who has issued the suspension order. The ld. SDR has, after verification, submitted that the investigating authority, in this case, was the Zonal Unit of the DRI in Chennai and that the Additional Director, DRI had submitted the investigation report dated 28-9-2011 to the Commissioner of Customs. He has, further, verified and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce has been suspended by the Commissioner pending enquiry against the CHA under Regulation 22 of the CHALR, 2004. The report received by the Commissioner from the DRI indicated that the appellant- CHA and one of the employees, in particular, were involved in the evasion of customs duty by undervaluing the used cranes imported by several importers by getting the import-invoices prepared by working out the value of the crane at Rs. 28/- to 40/- per kg. of the weight of the crane as against the actual transaction value of the cranes. The importers were also found to be paying freight charges for the shipping lines by suppressing the said fact and the differential amount pertaining to the imports were being remitted by the importer through unofficial channels. The appellant s premises were searched and incriminating documents were recovered. Statements of the one of the employees, namely, Shri Madan Lalwani, who had exclusively dealt with the cranes imported was recorded under Section 108 of the Customs Act, 1962, wherein he admitted that he was advising crane-importers on the value to be declared to the customs in respect of the cranes imported by various importers and after understa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... licence and the decision is neither arbitrary nor mala fide." This decision of tribunal should have guided the Commissioner to record the suitable reasons for taking immediate action of suspension or for continuing with same. However even after quoting this decision he has proceeded without giving any reason for suspension. 4.6 In case of Sai Datta Shipping [2019-TIOL-2298- CESTAT-Mum], this tribunal held as follows: "5. The relationship of a custom broker with a licensing authority is one of 'near employment' as a facility for smooth clearance of cargo on behalf of importers/exporters who may be at other locations. Unlike tax disputes, the consequence of detriment under the Licensing Regulations has a bearing on the lives of the brokers as well as their dependents. There can be no doubt that suspension for long periods of time or disproportionate penalties impact these persons. It is in acknowledgement of the criticality of expeditious action that the Regulations contemplate prescription of timeline, without which an atmosphere of lack of accountability would pervade the entire exercise. 6. In the present instance, it is seen that the gap between the original order of s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not an empty formality but the responsibility cast on the Commissioner to decide the issue of continuation of suspension in reasonable and logical manner by way of speaking order, clearly recording the reasons for suspension of licence. The reason obliviously cannot be "enquiry is contemplated" simplicitor. In our view in the present case Commissioner has not recorded any reason for the cause of immediate suspension or continuation of the suspension. 4.8 Hon'ble madras High Court has in case of Thiru Rani Logistic Pvt Ltd [2019 (365) ELT 856 (MAD)] has laid down the law as follows: "9. Perusal of the above said provision would show that the Commissioner of Customs is empowered to suspend the approval granted to Customs Cargo Services Provider in appropriate cases where immediate action is necessary, pending enquiry or where the enquiry is contemplated. Therefore, it is evident that action under Regulation 11(2) can be taken only when the Commissioner of Customs is of the view that immediate action is necessary for suspending the license. Needless to say that such consideration must explicitly available in the order of suspension. Certainly, the order of suspension made by exe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o. The respondent has not stated any other reason anywhere as to why an immediate action is required in this case. 10. This Court has considered the similar provision made under Regulation 21(2) of the Customs House Agents Licensing Regulations, 1984 in W.P. No. 17363/1994, dated 28-11-1994 reported in 1995 (77) E.L.T. 79 (Madras) [East West Freight Carriers (P) Ltd. v. Collector of Customs, Madras]. At paragraph Nos. 7 to 9 of the said decision, it has been observed as follows : 7. I have considered the submissions made by the Learned Counsel for the parties. The power of the Collector to take action under Regulation 21(1) is not questioned in the writ petition. It cannot also be disputed that under Regulation 21(2) the Collector has the power to suspend licence of a Customs House Agent when enquiry against such agent is pending or contemplated where immediate action is necessary. 8. In my opinion the power to suspend the licence is to be exercised where immediate action is necessary. A plain reading of the impugned order does not show that the Collector applied his mind to consider whether immediate action was necessary in the case. The order also does not state that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e clearing agent so as to disable him from taking any further action in the matter since, under a particular situation and under some given set of circumstances, the requirement of immediate action may demand that the clearing agent may be immediately required to be prevented from working any further. The minimum that is required by the Commissioner to enable him to exercise such power is the spelling out of the circumstances in the order warranting the need to take such immediate action and to actually say that immediate action is indeed required in the matter. What we see from the impugned order dated 9th June, 1998, is that the expression "immediate action" itself is missing. That apart, what we find from the preamble, recitals and facts stated in the order is that the circumstances did not warrant the taking of immediate action in terms of Regulation 21(2) of the 1984 Regulation." 12. Going by the above decision of this Court as well as the Division Bench of Calcutta High Court, it is evident that the present impugned order passed under Regulation 11(2) without there being any finding as to why immediate action is necessary to suspend the license, cannot be sustained even th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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