Full Judgment
2. Vide impugned order dated 30-3-1999, the Commissioner of Customs, Delhi has held as under : Whereas as enquiry against M/s. Poonam Cargo Services, E-147, 2nd Floor, Lajpat Nagar-I, New Delhi - 110 024 (hereinafter referred to as the CHA), holder of Regular Licence No. R-35/87 valid upto 5-5-2001 of Delhi Customs House, is contemplated with regards to the clearances of I. V. Can-nula valued at Rs. 1,22,60,000 for misclassification and misdeclaration as "Disposable and non-disposable cannula for aorta, Vene Cauae and similar veins and blood vessels" with a view to wrongly avail benefit of exemption Notification No. 23/98-Cus. and to clear these goods at Nil rate of duty on Bills of Entry Nos. 218025, dated 21-8-1998,110737, dated 29-7-1998 and 215634, dated 1-8-1998.
Whereas the statements of Shri Sunil Nanda, the CHA and Shri Rajiv Malik, the G card holder employee of the CHA were recorded Under Section 108 of the Customs Act, 1962, in which they admitted the facts of changing from description of the goods to evade customs duties and attempting to avail duty exemption which was not admissible on these goods. It was also admitted by them that the same item had been earlier cleared by them on payment of duty on behalf of the same importer.
Moreover, this misdeclaration was done on three Bills of Entry - two filed at Air Cargo Unit, New Delhi and one filed at Inland Container Depot, Tuglakabad.
Whereas the CHA's Licence was suspended vide Order C. No.VIII(H)13/7/85/3191, dated 31-8-1998. The CHA filed an appeal before Hon'ble CEGAT. The Hon'ble CEGAT vide Order No. A/1039/98-NB (DB), dated 14-12-1998 [1999 (110) E.L.T. 696 (T)] set aside the suspension order on the ground that the suspension order does not disclose that the matter was so urgent as to warrant action under Regulation 21(2) and the ground of immediacy is also not spelt out therefrom.
Accordingly, the said suspension order was revoked vide order C. No.VIII(H)13/7/85/247, dated 25-1-1999. However, it was made clear in the said order of Hon'ble CEGAT that the order does not preclude the Commissioner from exercising her powers under Regulation 21 (2) of the Customs House Agents Licensing Regulations, 1984 in accordance with the law.
Whereas the matter was examined afresh. On the basis of confessional statements of the CHA and his employee, as mentioned hereinabove, the misdeclaration appears to be a deliberate act on the part of the CHA with an intention to aid and abet evasion of Customs duties resulting in loss of revenue. Therefore, the CHA appears to have failed to discharge his obligations as prescribed under Regulations 14(d), 14(e) and 14(1) of the Customs House Agents Licensing Regulations, 1984 (hereinafter referred to as the CHALR' 84). Also, unless immediate action is taken to suspend their Licence, the CHA is likely to indulge in such activities again resulting in loss of revenue. The act of commission and omission on their part renders the CHA liable for action under Regulation 21(2) of the CHALR '84.
Now, therefore, I, Vijay Zutshi, Commissioner of Customs (General), New Delhi in exercise of the powers conferred upon me under Regulation 21(2) of the CHALR '84 hereby suspend the CHA Licence No. R-35/87 of the said CHA M/s. Poonam Cargo Services, New Delhi with immediate effect and until further orders.
This order is being issued without prejudice to any other action that may be taken or proposed to be taken against the CHA or their employees under the provisions of the Customs Act, 1962 or any other law for the time being in force.
2. Provisions of Regulation 21(2) of the CHALR, 1984 are attracted in situations where immediate action is necessary. In the present case, the Commissioner or Customs had passed an order of suspension on 31-8-1998 which was set aside by Tribunal's Final Order No.A/1039/98-NB, dated 14-12-1998 on the ground that the suspension order does not disclose that the matter was so urgent as to warrant action under Regulation 21(2). Even now, we are of the same view, as the order does not disclose any necessity for immediate action -the Bills of Entry on which the appellant is alleged to have misdeclared and misclassified the goods are of July and August, 1998. Even in December, 1998, the Bench was not satisfied that necessity of immediate action was disclosed in the suspension order dated 31-8-1998. The present order does not also disclose any necessity for immediate action. The Commissioner has only spelt out only one ground - that the applicants may indulge in activities again resulting in loss of revenue; however, no reasons have been furnished for arriving at this conclusion. It also appears from the records that no proceedings have been initiated under Regulation 23 of the CHALR, 1984 in spite of passage of considerable length or time, which itself would show that there is no great urgency in the matter. In the light of the decision of the Hon'ble Madras High Court in the case of East West Freight Carriers reported in 1995 (77) E.L.T. 79 (Mad.) and the Hon'ble Calcutta High Court in the case of N.C. Singha and Sons v. Union of India reported in 1998 (104) E.L.T. 11 (Cal.) wherein the Court has held that an order of suspension of CHA licence is bad in law unless it indicates application of mind by the Commissioner to the aspect whether immediate action was necessary pursuant to contravention by the CHA, we set aside the impugned order and allow the appeal. We, however, make it clear that this order does not preclude the Commissioner from exercising powers under Regulation 23 of the CHALR, 1984, in accordance with law. Order to be given dasti to both sides.