Customs, Excise and Gold Tribunal - Bangalore
Tass Clearing Services Pvt. Ltd. vs The Commissioner Of Customs on 26 February, 2007
Equivalent citations: 2007(117)ECC319, 2007ECR319(TRI.-BANGALORE)
ORDER S.L. Peeran, Member (J)
1. This appeal arises from Order of Suspension dated 21.11.2006 passed by the Commissioner of Customs ordering suspension of operation of customs house licence under the provisions of Regulation 20(2) of Custom House Agents Licencing Regulations, 2004. The case was detected on 22.9.2006 and the suspension order has been passed after 61 days. The appellant's contention is that suspension cannot be ordered after lapse of time and there was no immediate cause for suspension.
2. It is the submission of the learned Counsel that in terms of the Tribunal ruling rendered in the case of International Cargo Agents v. CC, Bangalore , the suspension should be immediate and if there is a long period of time from the date of misconduct as alleged, then it is not "immediate" as per the regulations and the suspension has to be set aside. He files a series of citations in support of his plea for seeking an order of revocation of suspension notwithstanding the power of the Commissioner to proceed to conduct the enquiry as required under the regulation. The Counsel also refers to High Court's order on this point in the case of N.C. Singha & Sons v. UOI . The following case laws were relied upon.
(i) East West Freight Carriers (P) Ltd. v. CC, Madras
(ii) Hexagen Shipping Services v. CC, Chennai 2002 (149) ELT 958 (Tri.-Chennai)
(iii) DH Patkar & Co. v. CC (G), Mumbai
(iv) Poonam Cargo Services v. CC, Delhi 1999 (31) RLT 666 (CEGAT)
(v) G & K Shipping Pvt. Ltd. v. CC (General), Mumbai 2005 (68) RLT 569 (CESTAT-Mum.)
(vi) GCL Shipping Agencies (P) Ltd. v. CC, Cochin 2.1 The learned Counsel submits that the offence indicated in the show cause notice is very minor and the suspension order has brought to a grinding halt the business of the appellants at three places. He submits that the documents alleged to have been signed by the appellant is not correct, as those documents were required to be signed by the department. The appellant had not committed any offence involving moral turpitude and it was a very simple charge inasmuch as they have alleged to misuse the licence by signing blank customs documents and also by allowing the unauthorized persons to operate. The suspension order has been replied and the Commissioner has not completed the proceedings, which should have been done immediately, thereby affecting the business of the appellant. He prays for an order to revoke the suspension order.
3. The learned JDR files a detailed reply on behalf of the Commissioner wherein the Commissioner has distinguished all the judgments cited by the appellants. The Commissioner has stated that the order of suspension has to be continued as enquiry is under progress and therefore, the Commissioner has opposed the prayer for setting aside the order of suspension.
4. We have carefully considered the submissions and have gone through the entire judgments cited before us. As can be seen from the show cause notice, the appellants been charged with an offence of allowing unauthorized person to operate on their behalf and have signed blank customs documents. There is no grave charge against them. In case the charge was grave they should have been put to "immediate suspension" as held by all the judgments noted supra. If there is a delay in issuing the suspension order, then it does not satisfy the term "immediate action" as stipulated in the regulations. Therefore, all the cited judgments have set aside the belated action on the part of the department in suspending the licence. They are bound by these judgments and we are not in a position to distinguish these judgments as pleaded by the learned Commissioner. The Commissioner is at liberty to proceed with the enquiry, however, the order of suspension has to be set aside as there is a delay in issuing the same and as the action was not taken immediately. The Commissioner is at liberty to proceed against the appellants in terms of the show cause notice but however, he shall permit the appellants to carry on the operation of CHA licence in terms of law. The appeal is allowed.
(Pronounced in open Court on 26.02.2007)