TaxTMI 
TaxTMI 
2017 (10) TMI 621
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.... Regulation 20(1) of the CHALR, 2004 ? (ii) Whether the Tribunal has acted in excess of its jurisdiction in that it confirmed the order of the Commissioner revoking the licence of the appellant firm in the absence of any evidence whatsoever as to the alleged violation of the provision of the CHALR by the appellant firm ? and (iii) Whether the Tribunal has acted in excess of jurisdiction in that it confirmed the revocation of licence as ordered by the Commissioner of Customs, Chennai in the light of the fact that there is no evidence whatsoever as to the mis-declaration of goods made by the importer or is there any evidence directly or inferential to prove that the appellant firm committed any act or omitted to do an act legally required to be done so as to warrant revocation of licence so as to deprive the appellant firm's right to pursue the lawful possession as CHA?" 3. The necessary facts which are required to be noticed for the disposal of this appeal are as follows: (i) The appellant herein is a partnership firm in the name and style of M/s.Santon Shipping Services. It was granted license by the Commissionerate of Customs, Tuticorin to functio....
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....e first respondent appointed an Assistant Commissioner, as an Inquiry Officer, who, after conducting the inquiry, gave his Inquiry Report on 09.4.2012. In the said Inquiry Report, the Inquiry Officer gave his findings that the appellant had failed to discharge its obligations under Regulations 10 and 13 (a), (b), (d),(e), (f) and (o) and 19(8) of CHALR, 2004. Based on this conclusion, the report concluded that the charges levelled against the appellant as contained in the show cause notice stood proved. The Inquiry Officer further recommended action of revocation of the license of the appellant and also forfeiture of the security deposit of the appellant. (xi) Thereafter, a copy of the Inquiry Report was furnished to the appellant. The appellant was directed to give its reply to the Inquiry Report. Pursuant to which, the appellant submitted its reply to the Inquiry Report, on 22.5.2012. (xii) Thereafter, on considering the report of the Inquiry Officer as well as the reply filed by the appellant, the first respondent vide his Order-in-Original dated 21.8.2012, revoked the CHA license dated 01.08.2003 issued to the appellant, and also forfeited the security deposit....
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....filed by the appellant, on behalf of the importer, further lapses committed by this appellant were revealed. Though initially the appellant had got the documents endorsed, for examining the goods at SANCO CFS, from the Deputy Commissioner on 02.09.2010, however, subsequently, the appellant obtained an endorsement in another set of similar documents, for examination of goods at Gateway CFS, from another Deputy Commissioner on 09.09.2010, whereas the 20 containers were not lying at Gateway CFS and were only lying at SANCO CFS. 7. The further case of the Revenue is that, the appellant while acting as CHA appeared to have lent his signature to some other persons as well. Further the appellant had, not verified and obtained any documents from importer directly, as per the annexure to Board Circular No.9/10 CUS dated 08.4.2010. 8. In respect of these charges, which were found to be against the appellant, the appellant on both occasions i.e., at the time of giving reply to the show cause notice, and also at the time of giving reply to the Inquiry Officer's report, rebutted these charges and gave a detailed explanation in respect of each of the charges levelled against him. 9.....
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....son without verifying and obtaining any documents from the importer directly as per the annexure to Board Circular No.9/2010 CUS dated 08.4.2010, a detailed reply dated 20.12.2011 had been given by the appellant, in this regard. 11. However, the Inquiry Officer vide report, dated 09.4.2012, has given a finding that those charges framed against the appellant have been proved and therefore, he recommended revocation of the licence and forfeiture of security deposit. 12. We have heard Mr. G.Derrick Sam, the learned counsel appearing for the appellant and Mrs. Hemalatha, the learned standing counsel appearing for the 1strespondent. 13. The learned counsel appearing for the appellant would raise the first ground of attack against both the Order passed in Original as well as the order of CESTAT, which are impugned herein, that the very show cause notice issued by the first respondent on 18.11.2011 itself, was without jurisdiction, as the said show cause notice should not have been issued beyond the statutory period of 90 days, as contemplated under Regulation 22(1) of the CHALR, 2004. In this regard, the learned counsel for the appellant relied upon Regulation 22(1)....
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....diction and unlawful, in view of the mandatory provision available in CHALR, 2004. Therefore, the entire proceedings which culminated in the order of revocation of CHALR licence of the appellant, passed by the first respondent, is vitiated. 18. Therefore, the learned counsel for the appellant would state that, while preferring appeal to the CESTAT, the appellant had raised the following ground as a first ground for consideration before the CESTAT which reads thus: "At the outset, it is submitted that the proceedings relate to a bill of entry filed on 02.09.2010. Though the office of the respondent acted against the importer, immediately based on the investigation made by DRI and also the licence of the appellant's firm was placed under suspension, the show cause notice in terms CHA Licensing Regulations itself was issued only on 18.11.2011 by the respondent. Subsequently, the impugned order has been passed after due process of law on 21.08.2012. The time taken by the respondent in this connection for completion of the proceedings under the regulations is not within the time frame specified in the Regulations of the CHA Licensing Regulations 2004. On this very ground....
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.... cause notice, as the appellant chose to reply to the show cause notice, and thereafter, participated in the inquiry. Even after the Inquiry Report, the appellant had chosen to reply to the further show cause notice issued by the first respondent. Hence, the appellant could not have raised, the said issue of limitation either before the CESTAT when it filed appeal against the Order-in-Original or before this Court. 22. The learned standing counsel would further submit that, on merits, there is no plausible explanation or reason available with the appellant with respect to the charges framed against it, as they stood proved. Therefore, the violation of Regulations of CHALR, 2004, especially, Regulations 10, 13 (a)(b) (d)(e)(f) (o) and 19(8), stood established. 23. The learned standing counsel would further state that, the appellant has violated a number of regulations of CHALR, 2004 and being a CHA, it cannot plead innocence or ignorance as, admittedly, endorsements were obtained two times from different Deputy Commissioners i.e., one from SANCO CFS and another from GATEWAY CFS, whereas the fact remains that the goods contained in the 20 containers were not lying in GATEWAY CF....
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.... question had been laid only at SANCO CFS, the natural corollary to be reached by any forum would be the one, which has been reached by both the first respondent, who passed the Order-in-Original and the CESTAT, in the order impugned herein. 28. Therefore, the learned standing counsel would state that, on merits, since the appellant does not have a case, the issue raised on behalf of the appellant qua limitation in terms of Regulation 22(1) of the CHALR, 2004 ought not to be entertained. 29. We have considered the said submissions made by both sides and we have given our anxious consideration to the points raised by the respective learned counsel. 30. Though much effort had been taken by both sides on the merits of the issue, as to whether the charges framed against the appellant are sustainable and whether the said charges have been proved, in view of the decision we propose to take on the issue of limitation, in content of the provisions of Regulation 22(1) of the CHALR, 2004, we are of the view that, those issues need not be gone into, at this juncture. 31. Insofar as the issue of limitation is concerned, it is the case of the appellant that, admittedly, the offence ....
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....ular No. 9/2010 dated 8th April 2010 clarifying the procedures governing the suspension and revocation of CHA licence. In para 7.1 of the said Circular, it was noted as under: "7.1 The present procedure prescribed for completion of regular suspension proceedings takes a long time since it involves inquiry proceedings, and there is no time limit prescribed for completion of such proceedings. Hence, it has been decided by the Board to prescribe an overall time limit of nine months from the date of receipt of offence report, by prescribing time limits at various stages of Issue of Show Cause Notice, submission of inquiry report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs recording his findings on the issue of suspension of CHA license, and for passing of an order by the Commissioner of Customs. Suitable changes have been made in the present time limit of forty five days for reply by CHA to the notice of suspension, sixty days time for representation against the report of AC/DC on the grounds not accepted by CHA, by reducing the time to thirty days in both the cases under the Regulations." 7. This Court has consistently emphasised the ma....
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....he Judgments referred to hereunder were noticed and followed: i) A.M.Ahamed & Co. V. Commissioner of Customs (Imports), Chennai- 2014 (309) E.L.T. 433 (Mad) ii) Masterstroke Freight Forwarders P. Ltd., V. Commissioner of Customs (I), Chennai - 2016 (332) ELT 300 (Mad.) iii) Sunil Dutt V. Commissioner of Customs (General), NCH - 2016 (337) ELT 162 (Del.) iv) Impexnet Logistics V. Commissioner of Customs (General) - 2016 (338) ELT 347 (Del.) v) Overseas Air Cargo Services V. Commissioner of Customs (General), New Dekgu- 2016 (340) ELT 119 (Del.) 38. Ultimately, the Court held that the show cause notice issued beyond the limitation period was not sustainable. 39. Following the said Judgment in M/s. Sowparnika Shipping Services Vs. Commissioner of Customs, Chennai and another, one of us (Rajiv Shakdher,J) allowed yet another writ petition i.e., W.P.No.44344 of 2016, in the matter of M/s. Patriot Freight Logisitics System Vs. Commissioner of Customs, Commissionerate - VIII, Chennai and two others vide Judgment dated 03.02.2017. 40. Also, another learned Judge of this Court (R.Mahadeven,J) in 2016 332 E.L.T. 300 (Mad.) in the matter o....