TaxTMI 
TaxTMI 
2014 (2) TMI 1016
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....ntry for clearance of the import consignment of the said firms were filed by one Shri Surendra Kumar Pandey by using the CHA licence of M/s. Unison Clearing Pvt. Ltd. 2.1 On 9-10-2012, the DRI officers searched the office premises and residential premises of the said Shri Vishal M. Madan and retrieved important data/documents showing undervaluation of the imported goods. They also searched the office premises and residential premises of the said Shri Surendra Kumar Pandey and he absented himself from his office and residence on 9-10-2012 and his whereabouts were not known to his staff or family members. As Shri Surendra Kumar Pandey did not report to the DRI office, the DRI sent a letter dated 11-10-2012 to the Chief Commissioner of Customs, Zone-I & II, requesting to suspend bills of entry filed by the said CHA company. During this period, Shri Surendra Pandey filed writ petition in the Hon'ble Bombay High Court praying to allow his interrogation by the DRI officers in the presence of his advocate. The matter is yet to be heard. During the course of interrogation, the statement of Shri Pall Singh Lohiya of M/s. Unison Clearing Pvt. Ltd. was recorded under Section 108 of the ....
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..... Relying on this report, the said CHA licence was suspended by the office of the Commissioner of Customs (General) vide order dated 19-1-2006 which was later revoked vide order dated 18-8-2006. This shows that the CHA is a habitual offender. In view of these observations, it was found that the continuation of transaction of CHA business by M/s. Unison Clearing Pvt. Ltd., CHA No. 11/273 would be prejudicial to the interests of Revenue and it was felt that it is an appropriate case in which immediate action as provided for under Regulation 20(2) of the CHALR, 2004, was warranted to prevent further misuse of the CHA licence and so the CHA company was placed under suspension vide Order No. 53/2012, dated 15-11-2012 and thereafter a post-decisional hearing was given on 26-11-2012 and the same was confirmed vide order dated 7-12-2012 issued on 10-12-2012. Aggrieved by the said order, the appellant is before us along with an application for stay. 3. Considering the complicity of the matter, we have heard the stay application and appeal altogether for final disposal. 4. Shri Harishankar, learned counsel for the appellant, appeared before us and submitted as under :- "1. ....
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....; thereafter, Shri Surendra Kumar Pandey presented himself, in the office of the DRI, on 1-11-2012 as well as on 5-11-2012, but his statement was not recorded and (f) ultimately, the statement of Shri Surendra Kumar Pandey was recorded only on 7-11-2012. Clearly, the statement, in the impugned order dated 7-12-2012, that Shri Surendra Kumar Pandey did not report to the DRI office, thereby provoking the DRI to issue its letter dated 11-10-2012, for suspension of the Bills of Entry filed by the appellant, is clearly incorrect. This also indicates that the action, of the DRI, in issuing the letter dated 11-10-2012, was unjustified, illegal and possibly mala fide, inasmuch as, prior to that date, not a single summons had been issued to Shri Surendra Kumar Pandey to present himself before the DRI, so that it could not be legitimately said that Shri Surendra Kumar Pandey was not reporting to the DRI office. (iii) Para 4 of the impugned order dated 7-12-2012 further states that WP 10120/2012, filed by Shri Surendra Kumar Pandey before the Hon'ble Bombay High Court, was "yet to be heard". This, too, is an incorrect finding, inasmuch as the said ....
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....on 10-1-2006 wherein they had suspended the CHA license of Unison Clearing Pvt. Ltd, pending enquiry. Relying on this report, the said CHA license was suspended by this office vide order dated 19-1-2006 and which was later revoked vide order dated 18-8-2006. This shows that the CHA is a habitual offender." In actual fact, (a) there was no order, revoking the appellant's CHA license, (b) the order, dated 19-1-2006, whereby the appellant CHA license had been suspended, was challenged, and was set aside by this Hon'ble Tribunal vide Final Order dated 18-8-2006, and (c) the said Final Order, dated 18-8-2006, passed by this Hon'ble Tribunal, was upheld, in appeal, by the Hon'ble Bombay High Court, vide judgment dated 8-2-2012. It is submitted, with respect, that it is extremely disturbing that a qualify-judicial authority such as the learned Commissioner should, without mentioning any of these facts, seek to rely upon the order, dated 19-1-2006, whereby the appellants CHA license had earlier been suspended, and further state, pallpably wrongly, that the license had also been revoked on 18-8-2006. Unfortunately,....
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....o. There is nothing to indicate that the appellant was privy thereto or that there was any propensity of the appellant being likely to commit any such offence in future either. The submissions were specifically advanced before the learned Commissioner. 7. As was submitted by the appellant before the learned Commissioner, the case presented yet another disturbing feature. The evidence against the appellant was essentially by way of the statement of Shri Vishal Madan. Also relied upon was the statement of Shri Pall Singh Lohiya. However, though the order, suspending the appellants CHA license, in exercise of the emergency powers contained in Regulation 20(2) of the CHALR, was passed on 15-11-2012, and post decisional hearing, in respect thereof, was granted on 26-11-2012, (a) the statement of Shri Lohia was never provided to the appellant, and even to the Licensing Authority, and (b) the statement of Shri Vishal Madan was provided to the Licensing authority only on after 30-11-2012, and was made available to the appellant only after the conclusion of the post-decisional hearing, which procedure is ....
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....d hereinabove on merits, it is further submitted that the impugned order also deserves to be set aside for transgressing beyond the statutory time limits stipulated in Regulation 20(2) and (3) of the CHALR. Though the learned Commissioner has, in para 18 of the impugned Order, reckoned the said time limits starting from the investigation report, dated 5-11-2012, of the DRI, it is respectfully submitted that, in actual fact, the said time limits are required to be reckoned from 11-10-2012 as, on that date, the DRI had already sent a letter, to the Chief Commissioner of Customs, requesting that the Bills of Entry, filed by the appellant, be suspended. This effectively resulted in suspension of the appellant's business, on the same date i.e. 11-10-2012, which clearly put the Commissioner on notice regarding the alleged contravention, of the CHALR, by the appellant. On this issue being put to the Revenue during the course of oral arguments, the learned DR sought to bypass it by merely stating that the communication, dated 11-10-2012, had been sent, not to the Commissioner, but to the Chief Commissioner, and that the Commissioner was put on notice only when he received the communication....
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....ash over and above the Customs duty. The CHA commission and other clearing charges were paid in demand drafts. Therefore, it is prima facie a clear indicator of the unauthorized use of the CHA licence for monetary consideration thus amounting to illegal transfer of licence. It is also confessed by Shri Vishal Madan that he was advised by Shri Surendra Pandey to ask overseas suppliers to stuff the container in a manner so that the packages containing thin material is stuffed towards the door side of the container. It is further submitted that neither Shri Surendra Pandey and Shri Nagendra Pandey's names were reflected in the CHA licence nor they have Customs passes issued by the competent authority and it can be inferred that the licence was used by an intermediary. The long association between Shri Vishal Madan and Shri Surendra Pandey is an evidence that Shri Vishal Madan has utilized the service of Surendra Pandey for the past seven years for the clearance of his consignments and it is admitted by Shri Vishal Madan that he has told the Chinese suppliers to undervalue invoices for all his consignments. It is also submitted that Shri Pall Singh Lohiya, director of the CHA company, ....
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....ector qualified in authorized to do so and not by Shri Surendra Pandey. As it is a matter of record, therefore that fact cannot be denied. Further, the first summons to Shri Surendra Pandey was issued only on 15-10-2012 summoning him to appear before the DRI on 16-10-2012 against the said order. Shri Surendra Pandey requested that he be permitted to appear in the presence of an advocate, at a visible, though not audible, distance. The said request was not considered. Thereafter, Shri Surendra Pandey moved the Hon'ble Bombay High Court by way of writ petition and the Hon'ble High Court allowed the petition on 1-11-2012 by permitting Shri Surendra Pandey to be accompanied by an Advocate, to be presented at visible, though not audible, distance and Shri Surendra Pandey presented himself in the office of the DRI on 1-11-2012 as well as on 5-11-2012, but his statement was not recorded and it was recorded only on 7-11-2012. These facts are also matter of record, therefore cannot be denied. Therefore, the finding in the impugned order that Shri Surendra Pandey did not report to the DRI office thereby provoking the DRI office to issue its letter dated 11-10-2012 for suspension of bills of ....
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....lied upon as the investigation is still going on. We further find that the allegation that the appellant is a habitual offender, on the basis of the order of revocation of their CHA licence on 18-8-2006 has already been set aside by this Tribunal and the same has been confirmed by the Hon'ble High Court of Bombay vide order dated 8-2-2012, is not sustainable. 11. We further find that the facts that the appellant has filed an application for inclusion of the names of Shri Surendra Pandey and Shri Nagendra Pandey as Directors in the appellant firm vide letter dated 9-8-2008 and police verification of the same has been conducted, have not been denied by the adjudicating authority. Therefore, on that basis, it cannot be alleged that the appellant has not intimated to the department for inclusion of the names of Shri Surendra Pandey and Shri Nagendra Pandey as Directors in the appellant firm. From the initial investigation and from the statement of Shri Vishal Madan, it is evidencing that the appellant is having knowledge of undervaluation of the imported goods done by Shri Vishal Madan although the statement is also retracted before the Hon'ble High Court of Bombay. It is also ev....