S.L. Peeran, Member (Judicial)
1. In both the appeals a common question of law and facts have arisen both the appeals are taken up together for disposal as per law with the consent of both the side.
2. These appeals have been filed by Customs House Agents against the orders of the suspension of Licence in terms of the provision of CHALR 1984 DT.2.2.2001 by the Commissioner of Customs, Trichy and Chennai respectively without issue of show cause notices and without granting any personal hearings. Therefore, the Appellants have filed Miscellaneous applications seeking early hearing as the appellants businesses have come to a grinding halt. It is further submitted that the impugned orders are in violation of principles of natural justice. They rely on the judgment of the Tribunal rendered in the case of Varun Forwarders vs. CCE reported in 2001 (129) ELT 384 (T) wherein a similar order of suspension without issuance of show cause notice and without gathering evidence in the matter has been set aside. The Ld. Counsel also relied on the decision rendered by this Bench in the case of K.P.S. & CO. Vs. CC, Madras reported in 2001 (129) ELT 128 (T) wherein also the order of suspension of CHA's licence under Regulation 21 (2) passed without bringing out as to what acts of omission and commission has been committed and without issue of show cause notice has been held to be bad in law and the order of suspension was set aside. The Ld. Counsel prays for a similar order.
3. Arguing on behalf of the Revenue, the Ld. DR submits that grant of personal hearing or issue of show cause notice to bring out the charges is not contemplated in the CHALR Rules. Therefore, Commissioner cannot be faulted for suspending the CHA on serious charges. The commissioner will now issue show cause notice. He seeks for confirmation of the order.
4. On a careful consideration of the submissions we notice that the Tribunal' judgements apply to the facts of the cases. Hence, the prayer for hearing the appeals are granted and we proceed to pass the final order.
5. The Tribunal in the case of M/s. Varun Forwarders (supra) has held:
"The reasons forthcoming from the Commissioner's order for suspending the licence issued to it under the Customs House Agents Licensing Regulations, 1984, are these. Despite issue of two reminders, the licensee did not come forward with records that were asked for verifying the genuineness of the request made by it for issue of passes to its employees. The number of passes requested seemed to the Department to be in excessive in relation to the volume of work conducted by the Assessee, and led to the inference that the licensee permitted some other person to use the licence, which required investigation.
2. We agree that the delay by the custom house agent in producing the information called for reflects on his competence and abilities. Certainly, if the Customs House agent cannot even reply to the customs house in time, whether he would be able to deal with the requests of his clients for prompt clearance seems questionable. However, that itself is no ground for pre-emptory suspension of his licence. After all, the appellant had been licenced, after verifying his knowledge and experience.
3. The suspicion that the Custom House agent permitted other to use his licence again is no ground for suspending the licence. Such an act is premature and hasty. The provisions of Regulation 21 (2) are to be invoked in case where immediate action is necessary. We do not find the mere suspicion, without a shred of evidence to support even a prima facie view, sufficient for a reasonable person to conclude that the continuance of custom house agent is so undesirable that its immediate suspension was called for." The Tribunal again in the case of M/s. K.P.S. & Co. (supra) held as follows:
"3. From the facts of the case they appear from the order of suspension impugned before, we find that a consignment mis-declared was detected by the Special Intelligence and Investigation branch of the Air Cargo Complex, Chennai wherein a different CHA had filed the Bill of Entries. Subsequent to these enquiries, the involvement of the present appellant CHA Viz. M/S. K.P.S. & Co. came to light. From the order it appears that after due enquiries and verifications, it was observed that a Bill of Entry No.232544 dated 7.7.2000 was filed by the present appellant CHA who had obtained the documents from one Shri R. Prakash, husband of one of the partners of another Clearing Agent. The order of suspension also finds that the partners of an other clearing agent. The order of suspension also finds that the partner and authorised signatory of the appellant CHA firm did not know the identity of the importer and clearance of the goods under the said Bill of Entry was done by one Janaki Raman who was a clearance clerk of the other CHA company who had given him the documents. The order does not bring on record as to what acts exactly Shri Janaki Raman performed which were required to be performed by the present CHA under the Regulations and the CHA was negligent in not performing his duties. The order also not bring out how this case is an appropriate case to fall under Regulation 21 (2) and there was an emergent situation which required dispensation of issuing a notice for suspension of the licence and a drastic action was called for on 13.9.2000 for a Bill of Entry which was also filed and cleared on or before 7.7.2000, i.e. almost two months earlier. Therefore, we are of the view that the exercise of the powers under Regulation 21 (2) have been exercised as far as the present appellant is concerned, without any basis and the findings in the present order also do not lead that a case under Regulation 21 (2) was called for. The order of suspension, therefore, under Regulation 21 (2) cannot be sustained due to lack of sufficient material in this case to be brought out under the said Regulation and hence the order of suspension is required to be set aside. Ordered accordingly. The Appeal is disposed of accordingly."
6. We notice that both the decisions squarely apply to the facts of these cases. In that view of the matter respectfully following the ratios of the decisions cited above the impugned orders are set aside and both the appeals are allowed. (Order dictated and pronounced in the open court)