Custom, Excise & Service Tax Tribunal
Mks Shipping Agencies (P) Ltd vs Commissioner Of Customs on 20 February, 2013
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
SOUTH ZONAL BENCH
CHENNAI
Appeal No. C/S/266/12 & C/345/12
[Arising out of Order C.No.VIII/13/23/1993-CHAL (Vo.III) dt. 12.9.2012 passed by the Commissioner of Customs, Tuticorin]
For approval and signature :
Honble Shri P.K. Das, Judicial Member
Honble Shri Mathew John, Technical Member
1. Whether Press Reporters may be allowed to see 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 the Members wish to see the fair copy of the order ? :
4. Whether Order is to be circulated to the Departmental authorities ? :
MKS Shipping Agencies (P) Ltd. Appellant
Versus
Commissioner of Customs,
Tuticorin Respondent
Appearance:
Shri P. Saravanan, Advocate For the Appellant
Shri Parmod Kumar, JC (AR) For the Respondent
CORAM :
Honble Shri P.K. Das, Judicial Member
Honble Shri Mathew John, Technical Member
Date of Hearing : 20.2.2013
Date of Decision : 20.2.2013
FINAL ORDER No.
Per P.K. Das
As the issue lies on a narrow compass, after disposing the stay petition, we take up the appeal itself for decision.
2. After hearing both sides and on perusal of the records, we find that vide impugned order dt. 12.9.2012, the Commissioner in exercise of powers under Regulation 20 (2) of the Custom House Licensing Regulations, 2004 suspended the CHA licence. The learned advocate on behalf of the appellant submits that after this order, a show cause notice dt. 6.12.2012 for revocation of licence was issued which was challenged before the Honble Madurai Bench of Madras High Court in W.P. (MD) No.16351 of 2012 and M.P. (MD) No.1 of 2012. He further submits that by judgement dt. 4.1.2013, the Honble High Court set aside the show cause notice dt. 6.12.2012. Hence, the impugned order of Commissioner (Appeals) is liable to be set aside.
3. On the other hand, the learned Authorized Representative for Revenue submits that the earlier order of the Honble High Court directed the appellant to pursue the matter before this Tribunal. It is his submission that it is an independent proceeding before this Tribunal which should be continued. There is no restriction imposed by the Honble High Court to pursue the matter before the Tribunal dealing with the issue on merits.
4. After considering the submissions of both sides, we find that it is appropriate to reproduce relevant portion of the judgement of the Honble High Court as under :-
The petitioner obtained a licence under Section 146 of the Customs Act r/w Custom House Agents Licensing Regulations, 2004, in the year 2004. On certain allegations, the licence granted to the petitioner as a Custom House Agent, was suspended, by an order dated 12.9.2012 passed by the commissioner of Customs, Tuticorin. Challenging the order of suspension, the petitioner came up with a Writ Petition in W.P. (MD) No.12633 of 2012. The said Writ Petition was disposed of by this Court, by an order dated 15.10.2012, following an earlier decision in M/s.Cargomar vs. The Commissioner of Central Excise and others (W.P.Nos. 5663 and 7126 of 2006).
2. Challenging the order of the learned Judge, the petitioner filed an appeal in W.A. (MD) No.946 of 2012. While ordering notice to the respondent, in the said Writ Appeal, a Division Bench of this Court, directed the order of suspension of licence to be kept in abeyance till 23.11.2012, by its order dated 09.11.2012, Eventually, teh Writ Appeal was disposed of, by a final order dated 09.11.2012, directing status quo to be maintained till 31.12.2012, to enable the petitioner to move an appeal before the CESTAT before the said date.
3. In the meantime, the respondent issued a show cause notice dated 06.12.2012, for the revocation of the licence, in terms of Regulation 20(1) and for the forfeiture of the security deposit in terms of the same regulation. Challenging the said show cause notice, the petitioner has come up with the above Writ Petition.
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11. In other words, the only contention of the respondent is that they were effectively prevented from issuing the show cause notice within 90 days, in view of the stay order/status quo order issued by this Court and that the period covered by the stay/status quo order should be excluded in computing the period of 90 days.
12. But the above contention cannot be accepted for two reasons. The first reason is that the previous proceedings in W.P.(MD) No.12633 of 2012 arose out of an order of suspension. The stay granted by the respondent, pursuant to the order of the learned Single Judge, upto 12.11.2012, was only a stay of the order of suspension and not a stay of all further proceedings. Similarly, the order of status quo order was only to keep the order of suspension in abeyance. In such circumstances, there was no impediment for the respondent to proceed with the issue of a show cause notice. The proceedings in the previous Writ petition as well as the status quo order passed in the previous proceedings were confined only to the suspension of licence of the petitioner and they did not in any way fetter the rights of the respondent to issue a show cause notice.
13. The second reason why I cannot accept the contention of the respondent is that the status quo order granted by the Division Bench, admittedly continued till 31.12.2012. The impugned show cause notice was issued on 06.12.2012. If the status quo order was an impediment for the respondent not to issue a show cause notice within 90 days, such impediment was in existence till 31.12.2012. I do not know how the status quo order in force upto 31.12.2012 could be taken to be an impediment only upto 06.12.2012 and not beyond that date. Therefore, the explanation given by the respondent for not issuing the show cause notice within 90 days, as stipulated by Regulation 22(1) cannot be accepted. Hence, the show cause notice deserves to be set aside on the ground of limitation. Hence, the Writ Petition is allowed and the impugned show cause notice is set aside. Consequently, the connected miscellaneous petition is closed. No costs.
5. In the instance case, Commissioner passed the order under Regulation 20 (2) of the Custom House Licensing Regulations, 2004. Regulation 20 (2) provides that the Commissioner may, in appropriate cases where immediate action is necessary, suspend the licence of a CHA, where an enquiry against such agent is pending or contemplated. Regulation 20 (1) provides that the Commissioner of Customs may, subject to the provision of Regulation 22, revoke the licence of CHA and order for forfeiture of security. Regulation 22 prescribes the procedure for suspending or revoking licence under Regulation 20 of CHALR, 2004. Regulation 22 (1) provides that the Commissioner of Customs shall issue a notice in writing to CHA within 90 days from the date of receipt of offence report, stating the grounds on which it is proposed to suspend or revoke the licence of CHA.
6. It is apparent from the above judgement of the Honble High Court that after the impugned order dated 12.9.2012, show cause notice dt.6.12.2012 was issued for revocation of the licence, which was set aside by the Honble High Court on the ground of limitation. In our considered view, when the show cause notice for revocation of licence under Regulation 20 (1) was set aside, order under Regulation 20 (2) of CHALR, 2004 cannot be sustained. In view of that, the impugned order is set aside and appeal is allowed. Stay petition is disposed of.
(Dictated and pronounced in open court)
(MATHEW JOHN) (P.K.DAS)
TECHNICAL MEMBER JUDICIAL MEMBER
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