MANJUNATHA SHIPPING SERVICES Vs. COMMISSIONER OF CUSTOMS (IMPORTS)

JUDGEMENT

(1.) THE appellant is a Customs House Agent ('CHA' for short) licensed under Custom House Agents Licensing Regulations, 2004 ('CHLAR' for short) by Custom House, Chennai. The appellant had filed three Bills of Entry on behalf of M/s. Ravi Enterprises, Surat for import of Mulberry Raw Silk Yarn, under Advance License Scheme in Customs Freight Stations (CFS) in Chennai. Certain investigations were conducted by Directorate of Revenue Intelligence, Surat in respect of such imports. It was found that the importer had obtained Advance Licenses from DGFT by giving false declaration regarding the factory premises and the importer was not having any machinery or manufacturing facility to process Raw Mulberry Silk Yarn that was being imported. The imported goods were being sent to Bangalore for sale to other parties who were not concerned with export obligations of the goods imported under the Advance Licenses. Since the DGFT licences were subject to actual user condition for manufacture of specified products, Revenue made out a case against the importer for having contravened the provisions of Export Import Laws and provisions of Customs Act, 1962 with regard to post import conditions in respect of goods imported without payment of duty and proceeded against the importer. During investigation, it was seen that while filing such Bills of Entry the appellant had not obtained any authorization from the importer for whom the imports were facilitated by them; not verified the antecedents and credentials of the importers; not personally interacted with the importers at the time of import and after the Customs Clearance of the consignment; not verified the signatures of the authorized person of both the High Seas Seller and buyer firms (importers) on the High Sea Sale agreement; not taken instructions at any point of time from the importers regarding the booking of imported cargo after Customs Clearance, but had taken such instructions from the High Seas Sellers for booking the imported cargo to Bangalore instead of sending the same to the premises of the license holder at Surat/Ankleshwar; not intimated the Customs Authorities at Chennai about the diversion of the goods imported under Advance authorization Scheme to Bangalore. The above failures on behalf of the appellant were considered to be contravention of Regulation 13(a), (d) and (m) for CHALR. The licensing authority received a report from the investigating agency in this regard on 08 -06 -2011. The licensing authority was of the view that continuation of the permission to the appellant to operate as CHA was detrimental to the interests of Revenue. Therefore, Commissioner of Customs initially suspended the license without any notice to the appellant vide order dated 23 -06 -2011. After that a post decisional hearing was offered on 10 -07 -2011 as envisaged in CBEC Circular9/2010 -Cus dated 08 -04 -2010. However, the appellant challenged the suspension order before the Hon. High Court of Madras on various grounds including delay in issuing such suspension order. After further opportunities for hearing as per the order of the Hon. High Court when the case was fixed for hearing on 18 -08 -2011, the appellant submitted written submissions and the impugned order is passed as per Regulation 20(3), after considering such written submissions. By the impugned order dated 02 -09 -2011, the suspension already ordered was ordered to be continued. Aggrieved by this order of 02/09/2011, the appellant has filed this appeal before the Tribunal.

(2.) THE Ld. Advocate for the appellant initially pointed out that concerned Bills of Entry were field on 19 -03 -2010 and DRI submitted its report to the licensing authority only some time near 24 -05 -2011 and therefore from the pace at which the matter was investigated and reported, it is clear that this was not the case where immediate suspension without following the procedure, of issuing notice and conducting enquiry laid down under Regulation 22(1), was justified. However, this argument was not pressed apparently because the appellant had agitated the same issue before the Hon'ble High Court in WP No. 16180/2011, but the Hon. Court did not find favour with this argument. However, the appellant points out that the Hon. Court had given liberty to raise all issues raised in the Writ Petition before the Commissioner.

(3.) FURTHER , he points out no show cause notice as envisaged in Regulation 22(1) has been issued so far for conducting such enquiry. The advocate pleads that the license of the appellant has been suspended in June 2011 and for last two years, appellant has been prohibited from carrying on his profession to earn his livelihood without giving him an opportunity to prove his innocence which is causing serious injury to the appellant. Therefore, in the circumstances, he prayed that impugned order of suspension may be set aside. He further points out that CBEC in its circular 9/2010 -Cus dated 08 -04 -2010 prescribed a time limit of nine months from the date of offence report to passing of final order. In this case 22 months have lapsed after issue of suspension order but even the Show Cause Notice has not been issued for enquiry as envisaged under regulation 22(1).