TaxTMI 
TaxTMI 
2019 (1) TMI 736
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....t Link Logistics Private Limited. The Consignee was SLV Trading Company. The Bill of Entry seems to have been filed by the Importer with the Customs describing the goods stuffed in the Container as "Christmas Decoration Lights and Horns". Pursuant to filing such Bill of Entry, the officers of the Dock Intelligence Unit under the respondent came to the Container Freight Station of the petitioner on 26.10.2018 and examined the contents. The Cargo was found to be White Crane Needles, Sewing Machine Needless, Shirt Pins for Garments etc., and also some Christmas Decoration Lights and Horns. This was a clear case of mis-declaration of the Cargo by the Importer, to which, the petitioner has no role to play. b) The Customs Officer seized the Cargo on 27.10.2018 and kept in storage at the Container Freight Station inside the Container Yard of the petitioner. A Mahazar was issued by the Customs Authorities dated 27.10.2018. On 05.12.2018 at about 22.53 hours, a truck bearing Registration No.TN 04 AQ 3488 arrived at the Container Freight Station. The said truck produced a Gate Pass which later turned out to be a forged Gate Pass and deceived the Security Staff of the Container Freig....
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....blic Note Receipt already allowed by the respondent's representative in Container Manifest Facilitation Centre and were due for loading into lorries for delivery at the Container Freight Station. The petitioner submitted a written representation dated 09.12.2018 to the Customs Officer. Thereafter, on 11.12.2018, the respondent released all the existing containers for delivery to the respective consignees through the Container Freight Station of the petitioner. d) The petitioner is a recognized licensed Container Freight Station receiving many containers from various vessels on day today basis for storing the same in Container Freight Station. From 07.12.2018, no Imported Containers were permitted to be processed for movement to the Container Freight station of the petitioner. A letter dated 12.12.2018 was sent to the respondent to give them an opportunity to be heard to explain the details of the case before taking any action. However, on 13.12.20178, the respondent issued the impugned order of suspension. The impugned order was issued without notice to the petitioner and without hearing them. Therefore, it violates the principles of natural justice. There is no imm....
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....ortunity was given to the petitioner to be heard before the Commissioner of Customs Chennai VIII on 28.12.2018 which was intimated vide letter dated 20.12.2018. The order for suspension was issued for non-compliance of the Rules and Regulations of Handling of Cargo in Customs Areas Regulations, 2009 in view of the available facts and statements. The petitioner had intentionally failed in discharging their duties as Customs Cargo Service Provider required under section 45(2)(b) of the Customs Act, 1962 and Regulations 5(n),6(1)(a),6(1)(b),6(1)(f) and 6(1)(i) of Handling of Cargo in Customs Areas Regulations, 2009. As per the Customs Act, 1962 Custodian is solely responsible for the safety of the cargo. The petitioner has miserably failed to perform their duties and responsibilities as the custodian of seized goods. c) The suspension order has been passed on 13.12.2018 after recording voluntary statements from the CFS Senior General Manager, Operations General Manager, Imports manager, FCL operations executive, Reach Stacker Operator and Helper to Reach Stacker Operator. After hearing to all the voluntary statements, it was clearly understood that M/s.Thirurani Logistics Pvt....
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.... Regulation 11(2) can be culled out from the facts and circumstances of the present case. If the suspension order is stayed or quashed, it would prejudice the interest of the Revenue, since the enquiry is going on. Learned counsel for the respondent also relied on the Standing Order No.48/2017 dated 28.01.2017 in support of his submission. 6. Heard both sides. 7. The petitioner is aggrieved against the order of suspension issued under Regulation 11(2) of HCCAR, 2009. Since I have narrated the respective pleadings of the parties and the facts and circumstances supra, which warranted the filing of the present writ petition, I am not reiterating the same once again hereunder. 8. Admittedly, the impugned order of suspension was issued under Regulation 11(2) of HCCAR, 2009, which reads as follows: "11. Suspension or revocation of approval for appointment of a Customs Cargo Service Provider: (1) ..... (2) Notwithstanding anything contained in sub-regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, suspend the approval granted to a Customs Cargo Service provider where an enquiry against such Cust....
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....der Regulation 11(2) is invoked, that immediate action is required based on the reasons supporting such apprehension of the Authority of continuance of illegality. Hence, there is a clear distinction between the nature of action taken under Regulation 11(1) & 11(2), while the former is a punitive, the later is a preventive. Perusal of the impugned order in this writ petition would show that no such consideration was made by the Commissioner of Customs except extracting Regulation 11(2) and stating that an enquiry is contemplated in this case and that allowing the petitioner to continue for work will seriously jeopardize the Customs duties and security of Cargo. The respondent has not stated any other reason anywhere as to why an immediate action is required in this case. 10. This Court has considered the similar provision made under Regulation 21(2) of the Customs House Agent License Regulation, 1984 in W.P.No.17363/1994 dated 28.11.1994 reported in 1995(77) ELT 79 (Madras) (East west Freight Carriers (P) Ltd. vs. Collector of Customs, Madras). At paragraph No.7 to 9 of the said decision, it has been observed as follows: 7. I have considered the submissions made by the ....
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....rted to apparently without spelling out in the impugned order as to whether any immediate action was necessary so as to suspend the licence of the appellants with immediate effect. Undoubtedly a plain reading of the Regulation 21(2) clearly stipulates that the requirement to take immediate action is a sini qua non to the suspension of a licence under Regulation 21(2) because such suspension is not by way of any punishment, as is contemplated by Regulation 21(2), but is required to cater to a situation warranting immediate action. The purpose of resorting to immediate suspension of a licence because of some immediate action is to immediately stop the activities of the clearing agent so as to disable him from taking any further action in the matter since, under a particular situation and under some given set of circumstances, the requirement of immediate action may demand that the clearing agent may be immediately required to be prevented from working any further. The minimum that is required by the Commissioner to enable him to exercise such power is the spelling out of the circumstances in the order warranting the need to take such immediate action and to actually say that....