2013 (10) TMI 1002

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.... Yarn that was being imported. The imported goods were being sent to Bangalore for sale to other parties who were not concerned with export obligations of the goods imported under the Advance Licenses. Since the DGFT licences were subject to actual user condition for manufacture of specified products, Revenue made out a case against the importer for having contravened the provisions of Export Import Laws and provisions of Customs Act,1962 with regard to post import conditions in respect of goods imported without payment of duty and proceeded against the importer. During investigation, it was seen that while filing such Bills of Entry the appellant had not obtained any authorization from the importer for whom the imports were facilitated by them; not verified the antecedents and credentials of the importers; not personally interacted with the importers at the time of import and after the Customs Clearance of the consignment; not verified the signatures of the authorized person of both the High Seas Seller and buyer firms (importers) on the High Sea Sale agreement; not taken instructions at any point of time from the importers regarding the booking of imported cargo after Customs Cle....

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.... Writ Petition before the Commissioner. 4. The Ld. Counsel for appellant submits that suspension under Regulation 20(2) is warranted only when an enquiry is pending or contemplated against a license holder. The impugned order nowhere mentions that any inquiry is pending or contemplated against the appellant. So he submits that the order is not maintainable. He relies on the decision of the Tribunal in Ganesh Shipping Agency Vs. CC -2008 (222) ELT 536 (Tri-Chennai) as affirmed by Hon. Madras High Court in the case of CC Vs. Ganesh Shipping Agency-2009 (245) ELT 120 (Mad) in this regard. 5. Further, he points out no show cause notice as envisaged in Regulation 22(1) has been issued so far for conducting such enquiry. The advocate pleads that the license of the appellant has been suspended in June 2011 and for last two years, appellant has been prohibited from carrying on his profession to earn his livelihood without giving him an opportunity to prove his innocence which is causing serious injury to the appellant. Therefore, in the circumstances, he prayed that impugned order of suspension may be set aside. He further points out that CBEC in its circular 9/2010-Cus dated 08-04-2010 ....

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.... him unfit to transact any business in the Customs Station. (2) Notwithstanding anything contained in sub-regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, within fifteen days from the date of receipt of a report from investigating authority, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated. (3) Where a licence is suspended under sub-regulation (2), notwithstanding the procedure specified under regulation 22, the Commissioner of Customs may, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs House Agent whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs House Agent. 8. Regulation 22 reads as under : REGULATION22. PROCEDURE FOR SUSPENDING OR REVOKING LICENCE UNDER REGULATION 20.- (1) The Commissioner of Customs shall issue a notice in writing to the Customs House Agent [within ninety days from the date of receipt of offence report, stating the grounds on which it is ....

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....e findings of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. (7) The Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs House Agent, pass such orders [as he deems fit within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-regulation (5). (8)?Any Customs House Agent aggrieved by any decision or order passed under regulation 20 or sub-regulation (7) of regulation 22, may prefer an appeal under section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of section 129 of the Act. 9. Regulation 22(1) is applicable for issuing both suspension order and revocation order. However Regulation 20(2) authorizes the Commissioner of Customs to suspend the licence of a CHA in emergent situations without following the procedure under Regulation 22(1). It is very obvious that immediate suspension of license is permitted only when an enquiry is pending is contemplated. The non obstante clause Regulation 20(2) makes an exception only i....