Customs, Excise and Gold Tribunal - Bangalore
P.V. Ramana Murthy Son vs Commissioner Of Customs on 23 March, 2006
Equivalent citations: 2006(109)ECC118, 2006ECR118(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. The appellant is a CHA agent who has challenged the Order No. 27/05 dated 28.4.2005 passed by the Commissioner (Customs) putting his CHA Licence No. 160 under suspension pending investigation and finalization of the matter. The Commissioner has taken a prima facie view that the appellant CHA has neither advised his client to comply with the provisions of the Customs Act nor brought the fact of non-compliance to the notice of the proper officer. Further, prima facie view has been expressed that it is evident that they have played active role in facilitating the illicit transaction. The challenge of the suspension is on the ground that the Commissioner has not even specified the name of the importers on behalf of whom the goods have been imported. The only fact known is that some containers were seized by the officers of DRI containing batteries, CFLs and other items which were said to contain toys. Based on this, the Commissioner has proceeded to suspend the licence but without indicating as to how he has come to the conclusion that the appellant had played an active role warranting action in terms of CHALR 2004. The suspension order is silent about other details as regards the illegal imports and its removal. It is further contended that the details of preliminary enquiries have not been spelt out in the impugned order. Therefore, the appellant is not aware on what basis the licence has been suspended as no details have been given by the respondent in the impugned order. Therefore it is submitted that such an order is violative of principles of natural justice. It is contended that the appellant is innocent of the allegations, that the action has not been initiated with immediate effect in terms of CHALR 20044 and as such in the light of large number of judgments, the suspension order is required to be revoked. The ratio of the following judgments has been relied in support of the submission that the suspension order is silent and it has not spelt out the charges clearly.
1) K.P.S. & Co v. CC Chennai
2) Pioneer Movers Pvt. Ltd. v. CC New Delhi 2001 (129) ELT 449 (Tri-Del)
3) V.K. Singh v. CC Hyderabad
4) Overland Agency v. CC (Prev), West Bengal 2004 (93) ECC 385 (Tri)
5) GCL Shipping Agencies (P) Ltd. v. CC, Cochin 2004 (96) ECC 146 (Tri) Learned Counsel further relies on the ruling of this bench rendered in the case of Devadatta Agency v. CC Bangalore wherein the delay in issuing a suspension order has been taken as a ground to set aside the Order of suspension. Further reliance is placed on a decision in the case of East-West Freight carriers (P) Ltd. v. CC Madras wherein the Madras High court has set aside the order of suspension as the suspension of licence has been held to be not sustainable unless the order indicates the application of mind by the collector to the aspect as to whether immediate action was necessary pursuant to contravention by clearing agent. He pointed out to the judgment of KPS & Co (supra) wherein the Madras Bench of the Tribunal has held that if the suspension order does not bring out as to what acts which are offensive has been committed showing the negligence of the CHA in performing his duties then such an order is required to be set aside. He submitted that appellant has suffered on account of loss of business and prays for revoking the order and has no objection for the Commissioner to proceed with the Show cause notice and defend the proceedings in terms of law by permitting the appellant to carry the business.
2. Heard Learned SDR who defended the impugned Order.
3. On a careful consideration and perusal of the Order, it is seen that the BEs were filed on 25.2.05 while the order has been passed on 28.4.05. The Order does not spell out the entire charges explicitly. The details are not given and therefore, on this ground alone in terms of the cited judgments, the order of suspension is required to be set aside. The Madras High Court in the case of East West Freight Carriers Pvt. Ltd. (supra) has clearly held that where the suspension of licence does not indicate application of mind by the Commissioner, then it is required to be set aside. Same view has been expressed in the case of GCL Shipping Agents Pvt. Ltd. (supra). The Tribunal in this case quoting large number of judgments has set aside the order of suspension and has granted liberty to the Commissioner to take an appropriate action for any such violation in terms of Customs Act, if there is any cause for the same after following the Principles of Natural Justice and in terms of CHALR 2004. The same order was passed in the case of V.K. Singh (supra) In the case of GCL Shipping Agency (supra) suspension order has been set aside on the ground that it has not been passed with immediate effect. Large number of judgments have been cited. We are of the considered opinion that all the judgments support the appellant's plea that the order of suspension lacks clarity and non-application of mind by the Commissioner. The plea is accepted. The order of suspension is required to be set aside with a direction to the Commissioner to restore the licence of the appellant. However the Commissioner is at liberty to proceed against the appellants as per law after following the Principles of Natural Justice without placing the appellants under suspension. The appeal is allowed.
(Operative portion of the order already pronounced in open court on conclusion of the hearing)