Custom, Excise & Service Tax Tribunal
M/S. Schankar Clearing & Forwarding vs Commissioner Of Customs on 11 May, 2012
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI PRINCIPAL BENCH, COURT NO. II Customs Appeal No.582/2011 Customs Misc. Application No. 515 of 2012 Customs Appeal No. 129/2012 Date of Hearing/decision : 11.5.2012 For approval and signature: Hon'ble Mr. D.N.Panda, Member (Judicial) Hon'ble Mr. Mathew John, Member (Technical) --------------------------------------------------------------------------
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Customs Appeal No.582/2011 Customs Misc. Application No. 515 of 2012
[Arising out of Order-in-Appeal No. 21/VKG/Policy/2011 dated 10.10.2011 passed by the Commissioner of Customs, New Delhi ] M/s. Schankar Clearing & forwarding Appellants Vs. Commissioner of Customs Respondent Delhi Appearance:
Shri J. M. Sharma, Consultant for the Appellants
Shri K.P. Singh, AR for the Respondent
Customs Appeal No. 129/2012
[Arising out of Order-in-Appeal No. 02/VKG/Policy/2012 dated 20.1.2012 passed by the Commissioner of Customs, New Delhi ] M/s. Schankar Clearing & forwarding Appellants Vs. Commissioner of Customs Respondent Delhi Appearance:
Shri J. M. Sharma, Consultant for the Appellants
Shri K.P. Singh, AR for the Respondent
CORAM:
Hon'ble Mr. D.N.Panda, Member (Judicial)
Hon'ble Mr.Mathew John, Member (Technical)
Date of Hearing/decision : 11.5.2012
ORDER NO . ________________________
Per D.N.Panda (for the Bench):
These matters were heard this matter for two days, i.e. 10.5.2012 and 11.5.2012.
2. Appeal No. 582/11 was filed before the Tribunal challenging Order dated 12.10.11 passed by learned Commissioner ordering immediate suspension of the CHA licence of the appellant based on evidence gathered during preliminary investigation with consequence of suspension under law. Soon after passing such order, ld. authority proceeded to pass another order on 20.1.2012 confirming the above suspension till the proceedings contemplated against them under Regulation 22 of CHA Licensing Regulation are completed.
3. During pendency of appeal No. 582/11, against the order dated 20.1.2012, the appellant again came in appeal to Tribunal which was registered as in appeal No. 129/12. Prima facie, we find that appeal No. 129/12 is against the order of suspension absolute and calling for disposal, appeal No. 582/11 became infructuous for which that is dismissed. We order accordingly.
4. We proceeded to hear appeal No. 129/12.
5. The appellant was aggrieved by order dated 20.1.2012 passed by learned Commissioner of Customs without confronting the materials gathered against it. Learned Advocate appearing on behalf of Appellant placing a date chart says that ld. Authority went against the provisions of law appearing in Regulation 20 of CHA Licensing Regulations, 2004. According to him, first order dated 12.10.11 was passed in exercise of the power conferred under Regulation 20(2) of CHALR 2004 and subsequent order dated 20.1.12 is outcome of the exercise of the powers under Regulation 20(3) of the said Regulations.
6. We proceeded to find out the reason why appellant has grievance against suspension. Today, Revenue came with a Misc. Application registered as 515/12 praying for no interference to the suspension, placing gravity of depositions recorded from various persons and more incriminating evidence gathered in the course of investigation. Prima facie, such depositions recorded under section 108 of the Customs Act, 1962 has implicated the Appellant indicating strength of evidence against appellant. But we do not express any opinion on these statements since appellant is yet to answer on the evidence against it upon confrontation thereof by the authority below. This necessitated to direct Revenue to provide copy of all statements and evidence relied upon by it. Shri Sharma ld. Counsel receives copies of the statements on behalf of appellant.
7. Learned DR submits that Revenue has been prejudiced by questionable modus operandi of appellant. It filed a bill of entry in the name of an importer without their knowledge. Description, quantity and nature of goods cleared under the said Bills of Entry was not known because the goods were not subjected to examination by Customs. But when importer whose name was used in the Bill of Entry complained that they had not imported any consignment and that implicated the appellant to the charge of violation of law and procedure, Revenue proceeded against the appellant. On further investigation, it was found that charges payable to custodian of goods was debited from the PD account maintained by the appellant. All such aspects prima facie shows that the appellant was involved in filing a fraudulent Bill of Entry and clearing unknown goods. So we are of the view that the suspension order should not be interfered with at this stage. While taking this decision we are guided by the decision of the Honble Andhra Pradesh high Court in CCE vs. H.B. Cargo Services, reported at 2011 (268) ELT 448 (A.P.)
8. Perusal of the statements recorded by Investigation in the bunch of papers given to us by Revenue throws light that this is not a case for interference by Tribunal when investigation followed by search proceedings has given rise to discovery of incriminating evidence for suspension of CHA licence. However, we do appreciate that appellant deserves to be provided opportunity of hearing to defend against charges if any learned DR explains that within two weeks of receipt of this order, learned Commissioner shall issue appropriate notice bringing out the charges against the appellant and the documents relied upon by investigation to grant fair opportunity of defence to the appellant. Granting 4 weeks time for defence to be lead by the appellant appropriate adjudication shall be done by learned Commissioner. Upon receipt of the defence reply if any, within a week thereof hearing shall be fixed and if the appellant so chooses to appear in person or through its authorised representative may appear and explain its case. Within 4 weeks of the conclusion of hearing, learned Commissioner shall pass appropriate order.
9. In the result, both the appeals are disposed in the terms aforesaid. MA 515/2012 filed by the Revenue also gets disposed of. So also in view of disposal of appeal MA is any pending on record get disposed.
(Pronounced in the Court) ( D.N.Panda ) Judicial Member ( Mathew John ) Technical Member ss 6