1 wpl694-11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION (LOD) NO.694 OF 2011 1) M/s. Babaji Shivram Clearing & Carriers Pvt. ] Ltd., a Company incorporated under the ] Companies Act, 1956 having its registered ] Office at Plot No.2, Behind Excom House, ] Saki Vihar Road, Saki Naka, Mumbai-400 072. ] 2) S. Vaidyanathan, Indian Inhabitant being the ] Manager (Legal Affairs) having his address ] Plot No.2, Behind Excom House, Saki Vihar ] Road, Saki Naka, Mumbai - 400 072. ]..Petitioners. V/s. 1) The Union of India, Through the Joint ] Secretary, Ministry of Law & Justice and ] Company Affairs, Aayakar Bhavan, 115, ] M.K. Road, Mumbai- 400 020. ] ] 2) The Commissioner of Customs (General), ] Having its office at CHA Section (P&E), ] New Customs House, Ballard Estate, ] Mumbai - 400 038. ] ] 3) The Additional Commissioner of Cutsoms. ] Central Intelligence Unit having his office at ] Jawaharlal Nehru Customs House, ] Nhava Sheva, Tal. Uran, Dist. Raigad, ] Navi Mumbai - 400 707. ]..Respondents. 2 wpl694-11 Mr. Vikram Nankani with Naresh Thakkar, Advocates i/v. M.R. Baya for the petitioners. Mr. Pradeep S. Jetly for respondents CORAM : J.P. DEVADHAR AND A.A. SAYED, JJ. JUDGMENT RESERVED ON : 20TH APRIL, 2011 JUDGMENT PRONOUNCED ON : 21ST APRIL, 2011 JUDGMENT (PER J.P. DEVADHAR, J.) 1) Rule. Rule made returnable forthwith. By consent, the petition is taken up for final hearing. 2) The petitioners are aggrieved by the order dated 28/3/2011 passed by the Commissioner of Customs (General), CHA Section Mumbai, whereby Customs House Agent Licence ('CHA licence' for short) issued to the petitioners 33 years ago has been suspended under Regulation 20(2) of the Customs House Agents Licensing Regulations, 2004 ('2004 Regulations' for short). 3) The relevant facts are that, the petitioners are carrying on the business as Customs House Agents for last 33 years and have an unblemished record in performing their duties as CHA. 3 wpl694-11 4) The CHA licence of the petitioners have been suspended mainly on the ground that the petitioners had requested for re-export of H.R. coils imported earlier vide Bill of Lading dated 20/5/2010 on the ground that the consignee had declined to take delivery of the said H.R. coils. According to the revenue, the petitioners had filed application for re-export on the basis of fabricated bogus documents stated to have been received from the Chinese Shipper. The fabricated documents were (one) letter of State Bank of India, Branch IBD, Mumbai to the effect that no remittances have been made to the Chinese Shipper in respect of the H.R. coils in question and (two) letter from Ahwin Impex, the importer to the effect that they are authorising the petitioners to re- export H.R. coils to China which were earlier shipped from China to India. 5) The investigations carried out by the customs authorities revealed that neither the State Bank of India had addressed the letter in question nor the Ashwin Impex had authorised the petitioners to re- export the H.R. coils. In the second week of January, 2011 statements of the employees / director of the petitioner were recorded, wherein they have stated that the documents filed by them for re-export of the H.R. coils were received from the Chinese counterpart through a courier and that Ashwin Impex were not their client. 4 wpl694-11 6) On the basis of the enquiry report, the CHA licence of the petitioners have been suspended under Regulation 20(2) by the impugned order dated 28/3/2011 inter alia on the ground that (a) totally disregarding the Rules / Regulations of re-export procedure, the petitioners had initially filed check-list for re-export wherein it was not mentioned that it is a case of re-export of shipment imported but not cleared (b) admittedly Ashwin Impex were not the clients of the petitioners, even then, check-list with shipping bill has been filed without verifying as to whether Ashwin Impex had actually authorised the petitioners to re-export the goods (c) by not taking reasonable steps of enquiry, the petitioners can be said to have aided and abetted in furnishing fabricated bogus documents to the customs authorities with a view to seek re-export of the goods in question. 7) In the present case, the specific case of the petitioners is that, the documents submitted by the petitioners which were found to be fabricated were received by them from the Chinese counterpart. Admittedly, the Chinese counterpart has not only admitted that the documents submitted by the petitioners to the customs were actually forwarded by them from China, but the Chinese counterpart has also appeared before the customs authorities at Mumbai owning up the responsibility for the mess. 5 wpl694-11 8) Moreover, the facts which are not in dispute are that (one) no remittances have been made to the Chinese counterpart in respect of the H.R. coils in question (two) investigations carried out so far do not suggest that the petitioners have played active role in fabricating the documents in question (three) there is no loss to the revenue because admittedly, the consignee - Ashwin Impex had not filed Bill of Entry seeking clearance of the goods in question and in such a case, the foreign supplier has every right to seek re-export of the goods (four) in the check-list with the shipping bill filed by the petitioners no benefits were claimed on the basis of the goods to be exported (five) though the impugned order states that continuation of the CHA licence granted to the petitioners would be prejudicial to the interests of the revenue, the nature of the prejudice has not been set out in the order. 9) Apart from the above suspension of a CHA licence under Regulation 20(2) of the 2004 Regulation can be ordered where immediate action is necessary. In the present case, the customs authorities in the middle of January, 2011 were aware of the fact that the documents submitted by the petitioners were fabricated, however the impugned order has been passed belatedly on 28/3/2011. 10) Moreover, the business of the petitioners has remained suspended for almost a month. The post decisional hearing was given 6 wpl694-11 on 5/4/2011 but till date no order has been passed. 11) In these circumstances, in our opinion, it is a fit case to revoke the suspension of licence and permit the customs authorities to take appropriate action as deemed fit after the completion of investigation. 12) In the result, the impugned order dated 28/3/2011 is quashed and set aside. It is made clear that the quashing of the impugned order dated 28/3/2011 shall not preclude the customs authorities to initiate proceedings as deemed fit after the completion of the investigation. 13) Rule is made absolute in the above terms with no order as to costs. (A.A. SAYED, J.) (J.P. DEVADHAR, J.)