2015 (12) TMI 2

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....prayed for revocation of the interim suspension pending final adjudication of the show-cause notice dated 25.8.2014, which is pending adjudication. 2. The brief facts are that the appellant broker was engaged by the importers namely M/s. Kushal Chand & Co. to clear the consignment of Cocoa powder imported against transferred DFIA, issued against the export of Biscuits under Sr. No. E5 of SION. The appellant performed the duties of the CHA/CB in clearing 37 consignments of Cocoa powder imported by Kushal Chand & Co. during the period December 2009 to November 2012. The importer claimed duty free benefit on the basis of final order No. !553/2009 dated 29.12.2009 of this Tribunal in the matter of Khushalchand & Co. Vs. Commissioner of Customs, Mangalore, which was reconfirmed in the subsequent order vide final order No. 1547/2010 dated 19.11.2010, which is reported at 2011 (265) ELT 109 (Tri-Bang). The Revenue, pursuant to some enquiries made with the Licensing Authority (granting DFIA) felt that duty free benefit was obtained by the said importer on the basis of mis-representation and/or suppression of facts. In Khushalchand case, this Tribunal had held that the term flour and ....

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....AT. On specific query from the Bench, it was informed that the Tribunals order dated 29-12-2009 is not challenged before higher juridical fora. 15. Having examined that the original amendment sheets of DFIAs thereto had been duly attested and authenticated by the Jt. DGFT, Mumbai and confirming the same, the commissioner has once again dealt with the whole issue very extensively which is clearly beyond the scope of the remand back order. 16. It is well settled in law that classification/clarification on Import Policy issued by Office of the Director General of Foreign Trade are binding on Customs as far as ITC Policy is concerned even if such clarifications are signed by Joint Director General of Foreign Trade, as affirmed by the Hon. Supreme court in the case of Commissioner of Customs v. Cine Land - 2000 (120) E.L.T. A67 by not granting stay on CEGAT Order reported in 1999 (114) E.L.T. 653 (Tribunal). 17. The Ld. Advocate has correctly stated that amendment sheets do have precedence over the previous document, which is exactly for the purpose for it is being issued. Therefore, the observation of Commissioner in going beyond the scope of the license is....

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....tion on certain grounds of mis-conduct and or non-compliance of the provisions etc. and sub-Rule (2) empowers the Commissioner for immediate action/suspension in appropriate case. In the present case, there is a long gap as pointed out by the Counsel, i.e. more than two years and as stated, the condition precedent is not available, for suspending the appellant, pending the final adjudication of the show-cause notice. 3.2 Further, he urges that once the show-cause notice is issued, which show the completion of investigation, and as such instead of adjudicating the show-cause notice, suspending the licence, vide separate order, as an interim measure is bad and uncalled for. It is further pointed out that post the statement of CHA/CB recorded on 23.9.2013 and as such all the facts were before the customs authorities. As such suspension by way of interim measure, after more than 12 months is bad and against the provisions of law. It is further stated that the concerned appellant CHA employs about 300 persons and their livelihood is being affected since the date of suspension, being 24.9.2014 and as such the same is fit to be revoked and the impugned order be set aside. 3.3. Furth....

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.... It is further urged by the learned Counsel that vide the impugned order (interim order), the learned Commissioner have erred in pre-judging the matter as the Commissioner has observed - I have no hesitation in holding that CHA/CB is guilty of violating regulation 11 of CHALR of erstwhile Regulation , 2004. Accordingly, the learned Counsel prays to set aside the order of suspension. 4. The learned AR relies on the impugned order and further relies upon the order of the Hon'ble Bombay High Court in the case of Commissioner of Customs (General) Vs. Worldwide Cargo Movers - 2010 (253) ELT 190 (Bom), wherein the Hon'ble High Court have said that in administrative matter like licencing etc., the Tribunal should not interfere with revocation and limit its power to judicial review, one has to see whether the principles of natural justice are followed and the findings are justified from material on record. In case, this aspect is satisfied, the Tribunal should restrain from interfering on the grounds of difficulties likely to be faced by the CHA and their employees. 5. We have considered the submissions of both sides. We find that the issue arose from the absence of the ITC....

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....nd how suppression of facts or mala fide intention can be alleged on the part of the importer and, more importantly, the CHA, when all the facts were clearly before the Customs authorities. The case under the Customs Act is not before us. The case before us relates to suspension of CHA License in connection with the same imports. We find the allegations against the CHA are not supported by facts. As discussed above, the contents of the DFIA and the contents of the amendment sheets were in the notice of the department when the Bills of Entry were filed and finally assessed in December 2012, whereas the show cause notice was issued in September 2014. And the Bills of Entry were assessed finally by the Assistant Commissioner only on the basis of CESTAT Order 452. The learned AR drew our attention to the show cause notice dt. 25.8.2014 issued by Commissioner under the Customs Act, to the importer and the CHA. He drew our attention to para 7.1 wherein it is stated that M/s. Kushalchand & Co. had misrepresented facts before the CESTAT while stating that the subsequent amendment sheets issued by the Licensing Authorities permit import of input items without any restriction of CTH class....