J.H. Joglekar, Member (T)
1. The Commissioner of Customs, Mumbai passed orders suspending the CHA licence of M/s. International Shipping Agency, CHA Licence No. 11/1107 under regulation 21(2) of the Customs House Agents Licensing Regulations, 1984 pending further investigations in the matter. The appeal is filed challenging the merits of the order. A stay application has also been filed.
2. We have heard Shri V.M. Doiphode, advocate for the applicants and Shri K.M. Patwari for the revenue.
3. The appellant was found operating under the licence of another CHA namely M/s. D.H. Patkar & Sons. In the case of importation made vide bill of entry No. 8689, dated 22-4-1998 the Joint Commissioner passed orders enhancing the assessable value and reporting the fact of unauthorised operation of the CHA for further action. This order was passed on 7-4-2000. In another case this CHA came to the adverse notice of the Customs where a penalty of Rs. 40,000/- was imposed upon him. This order was made by the Commissioner of Customs (Import) dated 13-12-1999 issued on 15-12-1999. The appeal against this order was allowed by the Tribunal by way of remand (Appeal No. C/166-R/2000-Mum).
4. On the basis of these two instances the learned Commissioner passed the impugned order. In his order he held as follows : –
“Thus in view of above it could be seen that in spite of the fact that the two cases are in progress against Shri C.R. Shukla, proprietor of M/s. International Shipping Agency, he has not reported the said facts to the department in the prescribed format “C” to the department and have obtained the CHA licence u/r 10(2) at Mumbai Port. By this act he has violated the provisions stipulated under regulation 10 of CHALR, 1984. Shri C.R. Shukla has been using the CHA licence of M/s. D.H. Patkar & Sons, CHA No. 11/128 and thereafter of M/s. Usha Shipping Agency. It is observed that the CHA has obtained permanent CHA licence in Delhi on September, 1998 and later in December, 1998 he has obtained a CHA Licence u/r 10(2) in Mumbai. Both the cases were registered before granting permanent CHA licence to Shri C.R. Shukla in New Delhi. Thus C.R. Shukla has not represented true facts while making the application for grant of CHA licence u/r 10(1) at New Delhi and u/r 10(2) at Mumbai and by suppressing the fact he has rendered himself liable for punishment under the provisions of CHALR, 1984.”
5. We have seen the application made by the appellant on 15-9-1998. Columns 10 and 11 made the following queries which were replied in negative by the applicant :-
“10. Whether he or the firm or company by whom he is employed have earlier held a Custom House Agents Licence under these regulations and whether is/was cancelled or suspended – No
11. Whether the applicant or any of the persons proposed to be employed by him have been penalised/convicted or prosecuted under any of the provisions of the Customs Act, 1962 or any other law for the time being in force -No”
6. Shri Doiphode submits that on a plain reading of the column 11 the information was required to be given where the applicant had been penalised. In the order by the Joint Commissioner made much later no penalty was imposed upon Shukla. The penalty imposed upon him by the Commissioner (Import) was at a later date than on the date of application. It is his case that on the date of the application Shukla had not made any wrong declaration and therefore the ground on which the Commissioner suspended his licence was improper. On perusal of the specific wording in the proforma we find this submission to be correct. We find that the grounds on which the Commissioner ordered suspension were not correct. This order suffers on this ground and is liable to be set aside. We set aside this order, allow the appeal making it clear that this order does not debar the learned Commissioner from proceeding against the CHA in terms of regulation 21(1) read with regulation 23 of the said Regulations.