TaxTMI 
TaxTMI 
2010 (10) TMI 653
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....or obtained any details of the goods being imported under the CHA's facilitation and (iv) not attended the import facilitation either personally or thorough their authorised employees, which appeared to be in violation of the various regulations of the CHALR, 2004. On the same date, the CHA was called upon to sent its written representation against the licence suspension; on 11-12-2009, the CHA filed its representation denying all the allegations of violations of any of the CHA Licensing Regulations, stating that the importers had submitted a letter on 23-10-2009 confirming that they had appointed the appellants as their CHA for all their clearances, submitting that they had verified the correctness of the particulars mentioned in the shipping documents and bill of entry and on the basis of such verification the goods were permitted to be cleared by the Customs, stating that the CHA brought the importer and presented him to the Customs when the SIIB sought details of the importers and stating that the import facilitation was done by the CHA. On 18-2-2010, the impugned order of continuance of suspension was passed on the ground that the CHA had filed bills of entry for clearance of ....
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....ibunal on 5-4-2010. The miscellaneous application for early hearing of the appeal and the appeal proper are yet to be listed for hearing. However, we have heard the miscellaneous application for grant of stay of the operation of the impugned order which was listed before us on 2-8-2010. 6. The order recorded above by the Hon'ble Vice-President proposes to grant stay of operation of the impugned order for the reason that the appellants have made out a strong prima facie case for stay on the following grounds :- (i) The filing of the Bill of Entry classifying "1-6-Chloro-3-Pyridylemethyl-N-Nitroimidazolidin-2-Ylideneaniine" under Chapter 38 which covers pesticides does not amount to violation of the CHALR, 2004. (ii) The suspension order dated 10-12-2009 was for violations listed in the said order, and not for having filed Bills of Entry for the importers allegedly claiming wrong classification of the imported goods. (iii) The show cause notice dated 17-11-2009 issued under Section 124 of the Customs Act to the importers M/s. Rudhrag Bioticks proposing classification of the imported goods as pesticides under CTH 3808 99 10, proposi....
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....ppeal against the impugned order, they have also filed a miscellaneous application for early hearing of the same - these are yet to be listed by the Registry for hearing by the Tribunal. Before hearing the appeal proper, the issues involved in this case cannot be judged finally. If the appeal is ultimately allowed in favour of the appellants, it will enable the appellants to start working again as a CHA in the Custom House. On the other hand, if the appeal is not allowed, the suspension order will continue and the appellants would have, no right to carry on work in the Custom House as CHA, The moot question is whether before hearing the appeal itself, a prima facie view can be taken at the stage of hearing the stay application and the order of suspension can be suspended allowing the appellants to immediately start working as CHA in the Custom House, pending decision in their appeal. In my view granting such a relief at the stage of hearing the stay application itself will amount to allowing the appeal itself as stay of the suspension order would allow the appellants to work as CHA again, a relief which they are seeking through the appeal. In other words, allowing this relief at th....
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.... the inquiry does not reveal any misconduct on the part of the CHA, the administrative authority would have to revoke the suspension. In my view, the Tribunal is only required to see that prima facie grounds exist forming a basis of the action taken by the administrative authority and also a post-decisional hearing is given where suspension has been ordered with immediate effect. In any case, these are required to be considered only at the stage when the appeal is heard in detail. We note that the appellants have not challenged the jurisdiction of the suspending authority nor is there any allegation that he has acted beyond his jurisdiction. 12. As also held by the Hon'ble Bombay High Court in the case of Worldwide Cargo Movers (supra), the Commissioner of Customs is responsible for happenings in the Customs area and for the discipline to be maintained over there. If he takes a decision necessary for that purpose, the Tribunal is not expected to interfere on the basis of its own notions of the difficulties likely to be faced by the CHA or his employees. The decision is best to be left to the disciplinary authority save in exceptional cases where it is shockingly disproporti....
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....to stay the suspension order are far from convincing as discussed below : - (i) The first ground is that the filing of the Bill of Entry classifying "1 - 6 - Chloro - 3 - Pyridylemethyl - N - Nitroimidazolidin-2- Ylideneamine" under chapter 38 which covers pesticides does not amount to violation of the CHALR, 2004. It is not factually correct to say that the Bill of Entry for the impugned goods were filed under Chapter 38, in fact the allegation against the CHA is that though these items were classifiable as pesticides under Chapter 38 and that the same CHA had correctly declared these goods previously as pesticides under Chapter 38 for another importer, in the present case the very same CHA filed a Bill of Entry under Chapter 29 declaring the impugned goods as chemicals deliberately to circumvent licensing restrictions and to evade payment of higher rate of duty. (ii) The second ground that the initial suspension order dated 10-12-2009 indicated different violations from what was indicated subsequently in the order of continuance of suspension, is prima facie not material as both the orders have to be read together since the latter one continues....
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....pathy) Technical Member POINT OF DIFFERENCE 17. The following point of difference is placed before the Hon'ble President, CESTAT, New Delhi for reference to Third Member for resolution :- Whether the operation of the impugned order of the Commissioner continuing the suspension of the CHA of the applicants requires to be stayed as held by Hon'ble Vice-President (OR) the application for stay is required to be rejected as held by learned Technical Member ? Sd/- (Dr. Chittaranjan Satapathy) Technical Member Sd/- (Jyoti Balasundaram) Vice-President 18. [Order per : M. Veeraiyan, Member (T)]. - The matter has been listed before me as per the direction of the Hon'ble President for hearing the 'Difference of Opinion' as recorded in Miscellaneous Order No. 444/2010, dated 4-10-2010 passed in Stay Petition No. C/S/147/10 in Customs Appeal No. C/197/10. 19. Heard both sides. 20. The relevant facts have been narrated in the miscellaneous order in detail. However, it may be appropriate to re-capsulate the sequence of events and relevant facts as per record, which are as follows :- (a) ....
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.... However, Hon'ble Technical Member was of the opinion that there are no justification for staying the suspension order. 21. In view of the above, following point of difference was formulated and referred to the Hon'ble President for reference to the third Member : - Whether the operation of the impugned order of the Commissioner continuing the suspension of the CHA of the applicants requires to be stayed as held by the Hon'ble Vice-President? OR The application for stay is required to be rejected as held by the learned Technical Member? 22.1 Learned Advocate for the applicant submits that though suspension order has been passed in October, 09 and confirmed in December, 2009, no follow-up action has been taken by the customs authorities to conduct any further investigation on the alleged failure in discharging the obligations under CHALR, 2004 and no show-cause notice has been issued proposing revocation of licence issued to them under Regulation 22 of CHALR, 2004. 22.2 He further submits that they have already filed a miscellaneous application seeking permission to withdraw the appeal itself and seeking direction of the Tribunal to direct the Commis....
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....ation 13 of CHALR, 2004. There are, prima facie, allegations relied upon for the purpose of ordering suspension of CHA licence. 24.4 The submissions that no action has been initiated against the CHA for imposition of penalty under Section 112 of the Customs Act, 1962 in the notice issued to the importer on 17-11-2009, in my considered opinion, is not relevant for the purpose of taking action for commission or omission by the CHA under CHALR. 24.5 The staying of the operation of the suspension clearly gives the relief, which is sought for in the appeal itself. If, after finally having the appeal, it is concluded that CHA licence deserves to be suspended, the same would lead to undue benefit bestowed on the applicant during the interim period. 24.6 The suspension has been envisaged as a weapon to be used in emergent situations with a view to prevent recurrence of illegal activities/irregularities. That is why the Courts have also permitted and approved suspension of licences even without issue of show-cause notice but, at the same time prescribed post-decisional hearing as a remedy against arbitrary decision by the customs authorities. In the present case, the....