Suspension order cannot be treated as Show Cause Notice mandatorily required to be issued under Regulation 20(2) of the Custom House Agents Licensing Regulations, 2004
Eltece Associates Vs. Commissioner of Customs (Port-Import) Chennai [2014 (11) TMI 695 – CESTAT CHENNAI]
Eltece Associates(the Appellant) is a holder of Regular Custom House Agents License issued under the Custom House Agents Licensing Regulations, 2004 (the CHA Regulations). The Appellant filed Bill of Entry No. 5970001 dated February 10, 2012 on behalf of M/s. Shini Knitwear, Tirupur (Shini) for clearance of the goods declared as Snap Fasteners, Sliders and Elastic Tapes, which was found to be mis-declared in order to evade anti-dumping duty. The Department alleged that the Appellant had filed Bill of Entry in the name of Shini Knitwear without verifying the antecedents, correctness and identity of their clients. The offence report was furnished to the Appellant on December 20, 2012 (SIB Report).
Based on the SIB Report, the Commissioner of Customs (Imports), Chennai suspended the CHA license of the Appellant vide order dated January 21, 2013 under Regulation 20(2) of the CHA Regulations. Thereafter, the Commissioner of Customs (Imports) ordered continuation of suspension of CHA license of the Appellant vide order dated February 15, 2013 under Regulation 20(3) of the CHA Regulations.
The Appellant argued that no Show Cause Notice was issued as required under Regulation 20(2) of the CHA Regulations. In response, after one year, by letter dated March 29, 2014, the Enquiry Officer informed the Appellant that the suspension order may be treated as Show Cause Notice.
Being aggrieved, the Appellant preferred an Appeal before the Hon’ble CESTAT, Chennai contending that suspension order cannot be treated as Show Cause Notice and there is a clear violation of Regulation 22 of CHA Regulations.
The Hon’ble CESTAT, Chennai, relying on the decision of the Hon’ble Madras High Court in the case of CC Vs. Ganesh Shipping Agency [2009 (245) ELT 120 (Mad).] and after observing Regulation 20 and 22 of the CHA Regulations, allowed the appeal in favour of the Appellant as after issuance of the suspension order dated January 21, 2013 under Regulation 20(2) of the CHA Regulations, no Show Cause Notice was issued by the Commissioner of Customs under Regulation 22(1) thereof. Accordingly, the Impugned Order was set aside.
Tribunal is right, as suspension order is nothing but arbitrary power simply exercised without caring their own very regulation, so definitely malafide and correctly set aside.
now the CHA can move liquidated damages on the department in the madras high court as he suffered heavy business loss for nearly one year is my opinion.