Customs, Excise and Gold Tribunal - Mumbai
Thakkar Shipping Agency vs Commissioner Of Central Excise And ... on 10 December, 2001
Equivalent citations: 2002(80)ECC411, 2002(149)ELT295(TRI-MUMBAI)
JUDGMENT S.S. Sekhon, Member (T)
1. This appeal has been filed by Proprietor, Shri Vijay T. Thakkarda a Custom House Agent holding a Customs House Agent Licence holder holding Licence No. CHA No. 11/1065 for the last twelve years or so. On or around 10.01.01 a container was intercepted and was found to contain consumer gods imported by the one M/s. Kureshi International; this was sought to be cleared through the customs by employing the appellant Custom House Clearing agent. A Bill of Entry was filed in pursuance of the same. Some inquires made by the officers resulted in realizing that thee was a mis-declaration of the contents of the container under import in a such as Brand name make of Foreign origin goods and country origin in the Bill of Entry was not found correctly declared and values of the goods were also misdeclared. The goods were examined under A Panchanama, the address and particulars of the importers as available with the agent were provided to the department. The offices of the appellant herein were also searched along with his residential premises, nothing incriminating was however recovered. His statements were recorded. On moving the Honorable Bombay High Court and in terms of the order of the Honorable Court the goods were released to the importer on 06.07.01 was issued interalia to the appellant.
2. Preventive officers of Customs, sent a report to the licensing authority. By a ex-parte of Order dt. 31.01.01, the licence of the present appellant under Regulation 21(2) of the Customs House Agent Licensing Regulations, 1984 herein after referred to as (CHALR) was suspended. Against this order, appeal was filed to the Tribunal and the Tribunal vide their order dated 11.06.01 directed the respondent to grant a post decisional hearing and thereafter pass appropriate orders. Pursuant to this direction the authority granted a personal hearing on 31.05.01 and on 01.08.01 passed the order confirming the suspension of the licence of the appellant under Regulation 21(2) CHALR. This appeal is against this order dated 01.08.01.
3. We have heard both the sides and considered the submissions & find:-
a. A plain reading of CHALR 1984 reveals that suspension of the Licence granted under the regulations can be resorted to any regulation under 21(1) or under 21(2) which reads as under.
"21(1) The Commissioner may, subject to the provisions of regulation 23, suspended or revoke the licence of a Custom House Agent so far as the jurisdiction of the (Commissioner) is concerned and also order for forfeiture of security on any of the following grounds:-
(a) failure of the Custom House Agent to comply with any of the conditions of the bond executed by him under Regulation 11;
(b) failure to the Custom House Agent to comply with any of the provisions of these regulation whether within the jurisdiction of the said (Commissioner) or anywhere else.
(c) any misconduct on his part whether within the jurisdiction of the said (Commissioner) or anywhere else which in the opinion of the (Commissioner) renders him unfit to transact any business in the Customs Station.
(2) Notwithstanding anything contained in sub-regulation (1), the (commissioner) may, in appropriate cases, where immediate action is necessary, suspended the licence of a Custom House Agent where an enquiry against such agent is pending or contemplated."
While the grounds for suspension under 2191) may not be related to any time period of the incident which would move the appropriate authority to order the suspension, Regulation 21(2) provides for suspension only in such appropriate cases, under special circumstances, where immediate action is found to be necessary and where an inquiry against such agent is pending or contemplated. In the present case the incident for which the suspension has been arrived at under regulation 21(2) has occurred on the alleged filing of the Bill of Entry in question i.e. somewhere dt. 08.01.01 or at the most on or around 10.01.01 when the goods were intercepted. Therefore a confirmation of suspension under 21(2) as in the present case, after conducting the hearing on 31.05.01 and thereafter passing an order on 01.08.01, does not exhibit any emergency or part of he authority for immediate action needed for the suspension. If the Commissioner came to a conclusion that the said action was immediately required, he need not have delayed the issue of this order, after hearing, by two months. Nothing has been brought on record, as to why a suspension under 21(2) was called for . If the Commissioner has come to a conclusion that the earlier suspension under 21(2) arrived at in January 2001, was required to be continued, he could have continued such a suspension under 21(1) The present suspension order confirming the suspension under 21(2) therefore cannot be upheld.
b. While we find hat suspension under 21(20 can be effected without granting a hearing and a post decisional hearing should be granted, the consequent suspension to be continued should be (SIC) under 21(1), if there is time lapse after the hearing since after such post decision hearing, normally immediate action under 21(2) as stipulated in CHALR, required under 2192) cannot be satisfied.
c. In the present case, the appellant has been given a notice for proposing confiscation and imposing penalty etc. which is required to be adjudicated by the proper offices and he has also bene served orders of an enquiry proposed under regulation 23 of CHALR. Therefor we find no reason to justify this suspension under 21(2).
4. The following case laws were relied by the appellants:- Kothari Sons v. Commissioner of Customs Mumbai reported in 1997(94) ELT 219, M.M. Clearing v. Commissioner of Customs, Mumbai reported in 1999 (113) ELT 241, Union of India v. Shashi Deojha reported in 1999 (113) ELT 385, Ramniklal Salagia v. Commissioner of Customs, Mumbai reported in 2001(132) ELT 761. We find the cases cited help the case of the appellant to consider, setting aside the order of suspension under CHALR regulation 21(2)
5. In view of our findings we set aside the suspension arrived at under CHALR regulation 21(20 and allow the appeal.
(Pronounced in Court)