Custom, Excise & Service Tax Tribunal
M/S. Smita International vs Commissioner Of Customs(General), ... on 21 January, 2008
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
COURT NO.1
APPEAL NO.C/262/07
(Arising out of Order-in- Original/Appeal No. 30/2006-07dtd. 22.1.07 passed by the Commissioner of Customs(G), Mumbai )
For approval and signature:
Honble Jyoti Balasundaram, Vice President
And
Honble A.K.Srivastava, Member(Technical)
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental : Yes
authorities?
M/s. Smita International
:
Appellant
VS
Commissioner of Customs(General), Mumbai
Respondent
Appearance Shri H.R.Shetty,Advocate for Appellant Shri Ajay Saxena, Authorized Representative (DR) CORAM:
Ms. Jyoti Balasundaram, Vice President And Mr.A.K.Srivastava, Member(Technical) Date of decision 21.01.08 ORDER NO.
Per : Jyoti Balasundaram Vide the impugned order the Commissioner of Customs has suspended the CHA licence granted to the appellants herein on the ground that their activities of subletting their CHA licence , which resulted in attempted export of Red Sanders/Sandal Wood Logs mis declared as Metal Lamp Stands was detrimental to the national interest and that immediate action of suspension was necessary.
2. We have heard both sides. We find force in the appellants submission that statements relied upon against them were recorded under the provisions of Sec.108 of the Customs Act, 1962, which cannot be relied upon in proceedings under the Customs House Agents Licensing Regulations 2004, in the light of the ratio of the Tribunals decision in Thakkar Shipping Agency vs. CCE, Bombay [ 1994(69)E.L.T.90], wherein it has been held that statement recorded under Sec.108 of the Customs Act 1962 cannot be used as evidence under CHALR and that recording of evidence and offering the persons for cross examination is mandatory under Clause 3 and 4 of the Regulation 23 of the CHALR 1984( the relevant provision is Regulation 22 of 2004 which is reproduced herein below and pari materia with the earlier Regulation 23 of the CHALR 1984 Regulations:) 22. 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 stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said Customs House Agent to submit, within such time as may be specified in the notice, not being less than forty-five days, to the Deputy Commissioner of Customs or Asstt.Commissioner of Customs nominated by him, a written statement of defence and also to specify in the said statement whether the Customs House Agent desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs.
(3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs House Agent, for the purpose of ascertaining the correct position.
(4) The Customs house Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing.
3. In the Thakkar Shipping Agency case, the Tribunal set aside the revocation of the appellants CHA Licence and allowed the appeal. The above decision has been followed in the case of Extin Shipping I(India)Ltd (Order No.A-191/WZB/2005/C.I dtd 28.9.2005 and in J.B.Udani Co. vs. CC(Gen.),Mumbai [Order No.A/1114/WZB/2006 dtd. 12.9.06 in the context of the 2004 Regulations. The plea of the ld.SDR that these decisions which were rendered in the context of revocation of licence and cannot be made applicable to cases of suspension like the present one, is not tenable for the reason that Regulation 22 prescribes procedure both for suspension and revocation of CHA Licence.
4. The ld.SDR relies upon the judgement of the Honble Kerala High Court in Asstt.Collector of Central Excise vs Wilfred Sebastian & others [1983(12)E.L.T. 122] holding that the validity of seizure of goods is not affected even if the search is illegal and the Tribunal has dismissed the appeal in the case of Akai Impex Ltd vs. CC.Mumbai [ 2003(156)E.L.T. 700] holding that the statement recorded under Sec.14 of Central Excise Act, 1944 is admissible as evidence as statement under Sec.108 of Customs Act, 1962, to contend that the suspension is not affected by the fact that the statements relied upon were recorded under Sec.108 of the Customs Act 1962 and not under the CHAL Regulations. However, neither of these decisions have been rendered in the context of the CHA Licencing Regulations, while the decisions relied upon by the appellants squarely deal with this issue. Hence, following the ratio of the Thakkar Shipping Agency decision which has been followed subsequently, we set aside the impugned order and allow the appeal.
5. It is needless to state that this order in any way does not preclude the Department from conducting the regular inquiry under the Regulations.
A.K.Srivastava Member(Technical) Ms. Jyoti Balasundaram Vice President pv 4