INTERNATIONAL EXPRESS CO. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) HEARD both sides. This is an appeal filed by the CHA, M/s International Express Company aggrived by the impugned order dated 2.3.2007 passed by the Commissioner of Customs (General), Mumbai. The adjudicating authority originally suspended the CHA licence on 8.12.2006, pending enquiry under the CGALR, 2004 and subsequently confirmed the suspension, after enquiry, concluding that the suspension of the CHA licence was absolutely necessary. Hence the appeal.

(2.) MR . Sujay N. Kantawala, Ld. Advocate for the appellants argued that firstly, in the case of TASS Clearing Services Pvt. Ltd. v. CC, Hyderabad -II reported in 2007 (80) RLT 224 (CESTAT -Ban.), the CESTAT has inter alia held that even a delay in suspending the CHA licence, after 61 days of detection of the case was set aside as it was not immediate as required under the regulations. He further stated that in the case cited above, the Tribunal had taken into consideration various precedents and the principles and held that suspension should be immediate, i.e. the action of the commissioner, in taking immediate action under the regulations should be done as expeditiously as possible, from the date of the alleged mis -conduct and if there is a passage of time from the date of notice of the mis -conduct as alleged, then it is not immediate, as intended as per the regulations and the suspension has to be set aside, in such a case. Reading this principle into the facts and circumstances of the present case, the ld. Advocate took us through the correspondence, in the form of various letters / representations, which according to him, clearly proves that the investigation in the present case and other related cases commenced long time back, and in fact, the Commissioner of Customs had also heard the CHA as far back as 20th June 2005. These letters are annexed to the appeal and no contrary evidence or argument has been put forth by the ld SDR appearing for the Revenue. At this stage he relied on a decision in the case of Setwin Shipping Agency v. Commissioner of Customs, Mumbai wherein the Tribunal has discussed the principle of delay in suspension of CHA licence. He, therefore, stated that on this ground alone, the suspension order, which has been belatedly passed and for altogether different purposes, cannot be sustained and deserves to be set aside.

(3.) LD . Counsel of the appellants further argued that from the date of the suspension order i.e. 8.12.2006, till today, the licence continues to remain suspended. He placed before us the decision as in the case of Falcon Air Cargo and Travel (P) Ltd. v. Commissioner of Customs, New Delhi and buttressed the submission that assuming for the sake of argument, if at all, it was a case of supervision failure, in respect of the suo -moto acts of the employee, on Mr., Santosh Dabhade, the period undergone, of suspension, was punishment enough and hence, the suspension of the CHA licence, should not be allowed to continue, any further. He thereafter drew our attention, to the show cause notice dated 18.2.2005, which was issued, by the ADG, DRI, Mumbai, in respect of seizure of three consignments of analgin which were imported by M/s Kalinga Trading Company. Thane. He stated that if the list notices to the show cause notice is seen, the CHA and its partner Shri Kamlesh Gandhi, in fact whose statements were recorded during the investigation, have not even been made a party to the show cause notice. In this respect, he drew our attention to the decision of the CESTAT in the case of Ease West Shipping Agency reported in 2006 (202) ELT 105 (Tri. - Mumbai) and submitted that the show cause notice dated 18.2.2005, was issued in respect of a particular seizure and when the CHA and / or its partner were not even called upon to show cause as regards penalty etc., the CHA licence which was suspended as late as 8th December 2006 was clearly an act of belated non -application of mind by the respondent Commissioner. The show cause notice was pending adjudication ( not having made the CHA and/or its partner a party) and would never result in invocation and/or confirmation of the penal provisions against the CHA. No useful purpose would be served at this stage in allowing further continuation of suspension of the CHA licence. Though the Commissioner has referred to certain other cases, which are supposedly under investigation of the alleged abuse of the CHA licence, which were reported as far back as in February 2005 and March 2005, the licence which came to be suspended in December 2006 only pertains and specifically refers to the investigation with regard to seizure of 16 MT of analgin only, imported by M/s Kalinga Trading Co. and hence, it is clear in these circumstances that no such proposal was put up for suspension of the CHA licence in respect of the cases under investigation by the Commissioner of Customs (Import) ACC, Mumbai and DRI. Mumbai and hence, the adjudicating authority had clearly mixed up the issues and had acted beyond the scope of the original suspension order.