AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2016 (11) TMI 467
X X X X Extracts X X X X
X X X X Extracts X X X X
....d order are that the Docks Intelligence Unit (DIU), Custom House, Chennai, detained a container at Chennai International Terminal on 20.03.2013, for detailed examination. Before opening the container, the seals affixed in the container were examined in the presence of two independent witnesses, Customs Broker, Licence Agents, Freight Forwarder and CFS Authority, however efforts taken by the department to contact the exporter was in vain, as he could not be traced and stated to be absconding at the relevant time. The DIU team found that the riverts of the seal lock of the container, where the seals were affixed, were found to be tampered. The container was opened and the cargo was examined in the presence of the two independent witnesses, Customs Broker, Licence Agents, etc., and it was found to contain 364 pieces of wooden logs of Red Sanders , weighing 13720kgs, whereas in the Shipping Bill, dated 04.03.2013, the cargo was declared as 16 pallets of Refractory Bricks . The investigation proceeded further, statement was recorded from the managing partner of the petitioner and after completing the other formalities, the petitioner was called upon to show cause, by show cause notice d....
X X X X Extracts X X X X
X X X X Extracts X X X X
....futility, as no notice was received by the petitioner. With these submissions, the petitioner's counsel requested that the petitioner be served a copy of the show cause notice and fresh proceedings initiated after giving the petitioner sufficient time to submit their reply to the show cause notice. After receipt of the letter from the petitioner's counsel, personal hearing was granted to the petitioner on 22.04.2015, by the respondent during which, the counsel reiterated the written submissions, dated 21.01.2015, and sought for setting aside the inquiry report requesting a fresh hearing in the matter and also informed that the proceedings are pending before the CESTAT with regard to the order extending the suspension of the petitioner's Customs Broker Licence. On these contentions, the respondent while adjudicating the show cause notice and passing the impugned order recorded that the copy of the order of suspension, dated 17.05.2013, under Regulation 20(2) of the CHALR, was addressed to the petitioner at No.181, Linghi Chetty Street, First Floor, Chennai 600001, which had been received by them in person on 20.05.2013 and also by post; the counsel for the petitioner had....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the respondent and impugned order was passed on 11.06.2015. 5. The learned counsel argued that in terms of Regulation 20(1) of the CBLR, the show cause notice issued was well beyond the period of 90 days from the date of receipt of the offence report, as it was issued after a lapse of nine months. By referring to Regulation 20(5), it is submitted that the inquiry report should be submitted within a period of 90 days from the date of issuance of notice under sub-regulation (1) of Regulation 20, but it was issued after 10 months from the date of such notice, on 13.12.2014. Further, it is submitted that the orders could have been passed by the authority within 90 days from the date of submission of the inquiry report, whereas the impugned order has been passed on 11.06.2015, after six months from the date on which the report was submitted by the Inquiry Officer. 6. Thus, the contention raised by the petitioner is that commencing from the issuance of the order of immediate suspension culminating in the impugned order revoking the licence, the entire proceedings are barred by limitation. In support of such contention, reliance was placed on the decision of the Hon'ble Division Ben....
X X X X Extracts X X X X
X X X X Extracts X X X X
....f time was CHALR and CBLR, 2013, came into force only from 21.06.2013. 9. In terms of Regulation 20(2) of the CHALR, the respondent was empowered to suspend the licences were inquiry against the petitioner is pending or contemplated. The petitioner's licence was suspended invoking the power under Regulation 20(2) of the CHALR, 2004, after which the inquiry was conducted. Referring to Regulation 22 of the CHALR, it is submitted by the respondents that the said Regulation stipulates the procedure for suspending or revoking licence under Regulation 20 and Regulation 22 of the CHALR does not specify any time limit of 90 days for issuance of show cause notice and Regulation 22(1) of the CHALR provided for granting time of not less than 45 days to the Customs House Agent to submit written statement of defence. Thus, the respondent would contend that proceedings against the petitioner commenced, when CHALR was in force, which did not stipulate any time limit for revoking the licence under Regulation 22. It is further submitted that when CBLR was notified in exercise of the powers conferred under Section 146(2) of the Customs Act, 1962 and in super session of the CHALR, an exception w....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... licence.- (1) The Commissioner of Customs may, subject to the provisions of regulation 22, revoke the licence of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part or whole of security, on any of the following grounds, namely :- (a) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under regulation 10; (b) failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else; (c) any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or any where else which in the opinion of the Commissioner renders 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 licenc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....e any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings and submit his report within ninety days from the date of issue of a notice under sub-regulation (1). (6) The Commissioner of Customs shall furnish to the Customs House Agent a copy of the report of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, and shall require the Customs House Agent to submit, within the specified period not being less than thirty days, any representation that he may wish to make against the 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 Cu....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n exercise of the powers conferred under Section 146(2) of the Customs Act, 1962 in super-session of CHALR, 2004, except in respect of things done or omitted to be done before such super-session. Thus, what has been saved while invoking CBLR are actions which have been done or omitted to be done before the super-session of the CHALR by notification dated 21.06.2013. Therefore, the contention raised by the petitioner that the regulation CBLR should be applied to the petitioner's case and the Court should intervene at this stage and set aside the order in original without relegating the petitioner to prefer an appeal before the Tribunal does not merit consideration. The petitioner cannot dispute the fact that the CHALR does not prescribe any time limit for action being initiated and their contention is solely based upon the new Regulations CBLR, 2013, which is inapplicable. 15. Furthermore, the petitioner would place reliance on a circular issued by CBEC dated 08.04.2010 by which the Board prescribed certain time limits in cases warranting immediate suspension under Regulation 20(2). It is therefore submitted that the impugned order has been passed in utter disregard to the time....
X X X X Extracts X X X X
X X X X Extracts X X X X
....014, 27.10.2014 and 28.10.2014 and did not make any oral or written submissions. Therefore, the Inquiry Officer was left with no option except to give a report based on the available records. The report concludes that the petitioner has not followed the norms prescribed by various circulars issued by CBEC and failed to comply with the provisions of CHALR, 2004 and committed professional misconduct and indulged in breach of trust reposed on them. 17. The Inquiry Officer's report was forwarded to the petitioner on 08.01.2015 with a copy marked to their counsel. The petitioner through their counsel submitted a written reply on 21.01.2015 alleging that the show cause notice or inquiry report has not been served on the petitioner and they harped upon the stand that the Department's communication was sent to the old address and therefore, it is presumed that the show cause notice also would have been sent to the same address. While adjudicating the show cause notice and passing the impugned order, the respondent has specifically recorded that there is no mention about the change of address at the time of personal hearing on 27.05.2013 or in the petitioner's written submissio....