DIVINE SHIPPING SERVICES Vs. COMMISSIONER OF CUSTOMS, JAMNAGAR

JUDGEMENT

(1.) THESE two early hearing applications have been filed which are listed today in respect of orders -in -original passed by Commissioner on 8 -7 -2011 and 19 -8 -2011. The first order was passed suspending the licence of the appellant CHA and post decisional hearing was found to have been over when the stay application came to be hearing. Therefore the applicant was informed that it will be appropriate to wait for the final order of the Commissioner which is required to be passed within 15 days from the date of hearing. Subsequently, the appellant filed another early hearing application of stay petition against order No. dated 19 -8 -2011 and made a request that both the early hearing applications in respect of orders dated 8 -7 -2011 and 19 -8 -2011 may be listed together by mentioning on 29 -9 -2011, which was allowed. Today, when the matter come up for hearing, since the order passed by the Commissioner, which is made in Appeal No. C -425 of 2011 is also for suspension of licence of CHA pending enquiry for post decisional hearing, the early hearing of stay petitions and the appeal filed against order dated 8 -7 -2011 have become infructuous and accordingly, the same are dismissed.

(2.) LEARNED counsel for the appellants argued the matter in great detail even though the matter was listed only for hearing of early hearing application of stay petition and stay petition against the impugned order. It was submitted that detailed arguments and early hearing are required in this case since the order of suspension has civil consequences since issue involves livelyhood of CHA as well as several dependent employees of the CHA. In view of the fact that stay petition has been listed, early hearing application loses its necessity and becomes infructuous.

(3.) IT was submitted that in this case action has been taken to suspend the licence under CHALR 20(2) and according to this regulation, the Commissioner has the powers to suspend the licence in appropriate cases where he feels immediate action is necessary and has to be done within 15 days from the date of receipt of the report from the investigating authority. In this case, the basis for initiation of action against the appellant is the letter written by Deputy Commissioner, Customs House, Pipavav Port dated 2 -7 -2011. This letter according to the Revenue was received in the Commissioners office on 5 -7 -2011. The Deputy Commissioner Pipavav, recommended action under CHALR after briefly explaining the facts of the case leading to registration of an offence case against the importers against two bills of entry filed on 9 -5 -2008 and two bills of entry filed on 22 -5 -2008. After verifying the facts briefly, he stated in the last paragraph that CHA had violated the Regulation 20(2) of CHALR for not obtaining authorisation from the authorities and recommended further action. It was submitted that this is not an investigation report. By the time this letter was written, the show cause notice issued had already been adjudicated and in fact it was submitted that even Commissioner (Appeals) had passed the order on this issue. After more than three years after the offence case was registered, Deputy Commissioner, Pipavav, who was not an investigating authority at all, wrote a letter to the Commissioner based on proceedings initiated consequent to the investigation by DRI and recommended action. The action of the Deputy Commissioner in submitting the report recommending action and action of the Commissioner in initiating action are contrary to the provisions of Regulation 20(2) of CHALR since the report itself was not from competent initiating authority, which is DRI. It was also submitted that no further verification or investigation was conducted by the Deputy Commissioner of Customs, Pipavav, but he relied upon the proceedings initiated by the DRI which resulted in adjudication order and order -in -appeal. It was submitted that on this ground itself, the order itself has to be held as unsustainable and set aside. Learned DR on the other hand submitted that proceedings have been initiated in accordance with law and the fact that adjudication proceedings and appeal proceedings were over by the time recommendation was made, is not relevant. The Commissioner has passed orders based on facts placed before him to initiate action and Commissioner has followed the procedure correctly.