9911796707
TMI Blog2004 (6) TMI 114X X X X Extracts X X X X X X X X Extracts X X X X ..... the CHA dated 24-3-2004. It is stated that the cause of action took place on the appellant filing Bill of Entry No. 134994, dated 17-11-2003 for the clearance of a Jaguar Motor Vehicle owned by one Shri Mohammed Ibrahim Kanyana which was allowed to be cleared provisionally under Section 18 of the Customs Act pending further enquiries as there was doubt about the rate of duty applicable and the declaration given regarding the registration of the car prior to import. On preliminary investigation, it was found that the importer is not entitled to import a passenger car through Kochi without a licence and the documents relating to the registration of the imported vehicle made it amply clear that the CHA could not have been unaware of the owners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to implement the order. However, the appeal has been listed for hearing and as such the matter was heard. 2. Both sides submitted their side of the case and filed the citations. 3. The question that arises for consideration is as to whether there was any preliminary evidence available for suspending the licence of CHA?. The appellants' grievance is that there has been violation of principles of natural justice in placing him on suspension and there was no immediate cause and for immediate action to suspend the licence. It is submitted that the cause of action rose on the Bill of Entry filed on 17-11-2003 and when the suspension was issued on 24-3-2003, there was a long lapse of time. In the suspension order, no evidence has been brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his licence, however such a criteria has not been brought out. It is seen that the Tribunal, in the case of N.G. Bhanushali Company v. CC, Kandla - 2003 (151) E.L.T. 544 (Tri. - Mumbai) has noted the Apex Court judgment rendered in the case of Menaka Gandhi v. UOI - 1978 (1) SCC 248 (SC) and that of Larger Bench judgment rendered in the case of Freightwings and Travels Ltd. v. Commissioner - 2001 (129) E.L.T. 226 (Tribunal - LB), and held the action of placing the CHA under suspension was violative of principles of natural justice. The Tribunal directed the Commissioner to follow the directions given by the Larger Bench in para 5.4 of the judgment. A similar order was passed in the Vega Shipping and Transport Pvt. Ltd. v. CC, Mumbai - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 21(2) of the CHALR. It was observed that "The rightful avocation of carrying on the business should not be unnecessarily hampered by the executive. This is a case where the Custom House has not taken proper care, devotion and attention which the case deserves. We, therefore, allow the appeal and set aside the impugned order". The Calcutta High Court in the case of N.C Singha Sons v. UOI - 1998 (104) E.L.T. 11 (Cal.) struck down the order of suspension on the ground that action was not within the ambit of "immediate action" as contemplated in the provisions of the Regulation 21(2), in view of the delay in issuing the suspension order. Likewise, the Hon'ble Madras High Court in the East West Freight Carriers (P) Ltd. v. CC, Madras - 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out in the suspension order. Therefore, following the ratio of the judgment rendered in the case of K.P.S. Co. v. Collector - 2001 (129) E.L.T. 128, the order of suspension was set aside on the plea of violation of principles of natural justice. The Calcutta High Court in the case of Jeena Co. v. Collector of Customs Another - 1987 (28) E.L.T. 223 (Cal.) struck down the order of suspension as invalid for not complying with the principles of natural justice as such action entails grave civil consequences and must not be jettisoned except in very exceptional circumstances where compulsive necessity so demands. In the present case also the Bill of Entry was filed and the same had been assessed provisionally. A presumption has been d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the suspension order is required to be set aside. 6. We also notice that the order of suspension dated 24-3-2004 was issued by the Assistant Commissioner of Customs (I B), and he cannot be the authority to pass the suspension order, as the Regulation 20 empowers only the Commissioner of Customs to place the CHA under suspension. It follows that the suspension order has to be signed only by the Commissioner of Customs and Assistant Commissioner of Customs cannot mention that he has been directed to place the CHA under suspension by the Commissioner of Customs again. This ground itself is sufficient to set aside the order of suspension. The order of suspension has to be signed by the Commissioner of Customs alone as contemplated under R ..... X X X X Extracts X X X X X X X X Extracts X X X X
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