Custom, Excise & Service Tax Tribunal
M/S. Vinod Tomer vs Commissioner Of Customs on 8 June, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. III
Customs Appeal No. C/52189/2015-[DB]
[Arising out of Order-In-Appeal No. 48/NK/COMM(G)/POLICY/2015 dated: 28/03/2015 passed by Commr.(General) New Delhi]
For approval and signature:
Hon'ble Mr. S.K. Mohanty, Member (Judicial)
Honble Mr. R. K. Singh, Member (Technical)
1
Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
M/s. Vinod Tomer ...Appellant
Vs.
Commissioner of Customs Respondent
(Import & General) New Delhi Appearance:
Mr. Piyush Kumar for the Appellant Mr. K. Poddar (DR) for the Respondent CORAM:
Hon'ble Mr. S.K. Mohanty, Member (Judicial) Honble Mr. R. K. Singh, Member (Technical) Date of Hearing/ Decision.08.06.2016 Final Order No. 52107 /2016 Per R. K. Singh:
Appeal has been filed against Commissioner of Customs New Delhi's order dated 28.03.2015 in terms of which CHA license of the appellant was revoked in terms of the Regulation 22(7) of the Customs House Agent Licensing Regulations 2004 as amended and the amount of security was also forfeited.
2. The Ld. Advocate for the appellant made submissions on the merits of case to plead that offence of the appellant was not so grave as to warrant revocation of CHA license. However, we do not find it necessary to reproduce submissions on merit for reasons which will become evident in the following paragraphs. Ld. Advocate also pleaded that the offence report in this case was received in May 2011 but the SCN was issued on 20.03.2012 which was a clear violation of the timeline of 90 days prescribed in Regulation 22(1) of CHALR. The inquiry report was submitted by the IO on 7.1.2015 almost 2 years 9 months after the issuance of SCN which was in gross violation of time-line of 90 days prescribed in Regulation 22(5) ibid. He cited Madras High Court judgment in the case of AM Ahmad Co. vs CC Chennai 2014 (309) ELT 433 (Mad.) to contend that breach of time lines prescribed in CHALR is fatal to the impugned order.
3. Ld. DR on the other hand contended that the appellant had grossly violated CHALR and therefore punishment is commensurate with the gravity of the offence. However, he admitted that there has been breach of the timeline prescribed in CHALR but added that as per the Delhi High Court judgment in the case of Burleigh International vs. CC 2016 (33) ELT 9(Del), the timelines prescribed under CHALR are not mandatory and therefore their breach is not fatal to the order .
4. We have considered the contentions of both sides.
5. At the very outset it is clear that the SCN in this case under Regulation 22(1) ibid was issued on 20.03.2012 but the inquiry report was submitted on 7.1.2015. CHA Regulation No. 22(5) states under:
5 At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings thereon submit the report within a period of 90 days from the date of issue of notice under sub-Regulation 1.
It is evident from the aforesaid sub Regulation that the inquiry officer was required to submit his report within 90 days of issuance of SCN which was issued on 20.03.2012 but submitted the same after 2 years 9 months from the issuance of notice under Regulation 22(1). Thus, breach of time limit prescribed under Regulation 22(5) is clearly established. Madras High Court in the case of A M Ahmad (supra) in effect has clearly held that breach of the time limit prescribed in Regulation 22 is fatal to the order and set aside the order on that ground. As regards the judgment of Honble Delhi High Court in the case of Burliegh International (supra) cited by Ld. DR, we have perused the same and find that in that judgment the issue was whether the order issued by Commissioner more than 15 days after the date of hearing under Regulation 19(2) of the CBLR would be sustainable. The Delhi High Court held that such order would be sustainable. However, we find that there is a qualitative difference between the timeline prescribed in Regulation 19(2) of CBLR vis a vis timeline prescribed in regulation 22 of CHALR Regulation. 19(2) of CBLR and Regulation 22(5) of CHALR are reproduced below:
19(2) Where a licence is suspended under sub-regulation (1), the Commissioner of Customs shall, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs Broker whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs Broker :
Provided that in case the Commissioner of Customs passes an order for continuing the suspension, the further procedure thereafter shall be as provided in regulation 20. 22(5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings and submit his report within ninety days from the date of issue of a notice under sub-regulation (1). It may be observed that the time line in Regulation 19(2) of CBLR for passing the order after hearing is preceded by word may because of which Delhi High Court did not regard it to be mandatory while the time line in Regulation 22(5) is preceded by shall because of which Madras High Court held the same to be mandatory. Thus, we do not find any disharmony between the judgments of Madras High Court in the case of AM Ahmad (Supra) and the judgment of Delhi High Court in the case of Burleigh International (supra).
6. In the light of the aforesaid analysis, and in the wake of the precedent set by the Madras High Court in the case of AM Ahmad (supra), the impugned order is unsustainable on account of time bar. We may add that Allahabad High Court in the case of Commissioner vs Monsanto Manufacturing Pvt. Ltd. 2014 (35) STR 177 (Allahabad) has held that once it is held that the demand is time barred, there would be no occasion for the Tribunal to enquire into the merits of the case raised by Revenue. It is in the light of this judgment of Allahabad High Court that we have refrained from analyzing the merits of the case.
7. On the basis of the above discussion, we set aside the impugned order with consequential relief, if any.
(Dictated and pronounced in the open court)
(R. K. Singh) (S. K. Mohanty)
Member(Technical) Member (Judicial)
Neha
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C/52189/2015-DB