Custom, Excise & Service Tax Tribunal
M/S.Confederation Overseas Clearing vs Commissioner Of Customs(Airport & ... on 8 August, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE
TRIBUNAL, KOLKATA
EASTERN ZONAL BENCH: KOLKATA
Miscellaneous Application No.MA-75487/16
Stay Petition No.SP-75488/16
&
Appeal No.C-76231/16
(Arising out of Order-in-Original No.KOL/CUS/AIRPORT/ADMN/10/2016 dated 16.05.2016 passed by the Principal Commissioner of Customs(Airport & Administration), Kolkata.)
M/s.Confederation Overseas Clearing
Applicant (s)/Appellant (s)
Vs.
Commissioner of Customs(Airport & Admn.), Kolkata Respondent (s)
Appearance:
Shri S.K.Mehta, Advocate for the Appellant (s) Shri S.K.Naskar, AC(AR) for the Respondent (s) CORAM:
HONBLE SHRI H.K.THAKUR, MEMBER(TECHNICAL) HONBLE SHRI P.K.CHOUDHARY, MEMBER(JUDICIAL) Date of Hearing :- 08.08.2016 Date of Pronouncement :- 08.08.2016 ORDER NO.MO/75565, SO/75566, FO/A/75803/2016 Per Shri H.K.Thakur.
The present Miscellaneous Application for early hearing of Stay Petition and Appeal have been filed by the appellant with respect to Order-in-Original No.KOL/CUS/AIRPORT/ADMN/10/2016 dated 16.05.2016 passed by the Principal Commissioner of Customs(Airport & Administration), Customs House, Kolkata from F.No.S-45-99/1978 Estt, as Adjudicating authority. Under this Order-in-Original dated 16.05.2016 Adjudicating authority has confirmed the suspension of CHA licence No.C-34 of the appellant, earlier suspended by Order dated 22.04.2016, under Regulation 19(2) of Customs Brokers Licencing Regulation, 2013.
2. Shri S.K.Mehta (Advocate) appearing on behalf of the appellant argued that early hearing of the appeal may be allowed as the livelihood of the appellant and his 10 other staff members is hit by the order passed by the Adjudicating authority. Learned Advocate submitted that the said CHA licence number C-34 was issued to the appellant on 15.03.2002 and is valid upto 14.03.2007. That in the year 2010 Commissioner of Customs, Mumbai vide permission dated 04.03.2010 allowed the appellant to work in Mumbai Customs Station. That the said licence and permission was issued to the appellant during the currency of Customs House Agent Licencing Regulation, 1984 (CHALR, 84) which got superseded by Customs House Agent Licencing Regulation, 2004 (CHALR, 2004). That Customs Broker Licencing Regulation (CBLR 2013) came into operation as per Notification No.63/2013-CUS(NT) dated 21.06.2013 and were notified in supersession of CHALR, 2004. That in May, 2001 appellant came to know that his employee Mr.Samir Poddar had dealt with certain clients without bringing to appellants notice anything and appointed a person Mr.Ravi Kotian as an employee. That on 03.07.2011 a show cause notice was issued by Customs Authorities at Mumbai to the appellant with respect to B/E No.2516198 dated 01.01.2011 for the misdeeds done by Mr.Samir Poddar and Mr.Ravi Kotian. That by an order dated 22.06.2011 Commissioner of Customs (General) Mumbai prohibited the appellant from transacting any CHA business in Mumbai Customs Zones I, II & III under Regulation-21 of the CHALR, 2004. That on 07.07.2011 by an order No.190/2011, Commissioner of Customs, Kolkata suspended the CHA licence of the appellant under Regulation 20 (2) of CHALR, 2004, which was confirmed by Commissioner of Customs, Kolkata vide Order-in-Original No.KOL/CUS/AIRPORT/ADMN/4/2011 dated 02.08.2011 issued on 04.08.2011. That on an appeal CESTAT, Kolkata vide Order dated 21.09.2011 set aside the suspension order dated 02.08.2011 and also ordered for de-novo proceedings which included a clause on continuation of suspension for 30 days from the date of the order.
2.1 That CC(Kolkata) did not pass any order within 30 days and no application for extension of time was filed by the department with CESTAT. That appellant vide WP No.990/2011 approached Calcutta High Court to get order of the CESTAT implemented. That by an order dated 02.12.2011 appellant was allowed to continue to work as a CHA. That the entire proceedings under CHALR, 2004 also became time barred under Regulation 20 & 22 as no show cause notice for revocation of CHA licence was issued within 90 days from the date(07.07.2011) of the offence Report.
2.2 That appellant received a show cause notice dated 08.06.2012 for revocation of CHA licence and appellant moved Calcutta High Court by filing WP No.571 of 2012, whereby High Court restrained the respondent from any final order without leave of the court. That appellant surrendered operations in Mumbai Customs as Mr.Samir Poddar was very influential at Mumbai and was still working behind the scene after revocation of his authorization by Appellant.
2.3 That other 10 Bills of Entry were filed before Bill of Entry No.2516198 dated 01.01.2011 by Mr.Samir Poddar to which the appellant was not aware of. That a show cause notice dated 25.03.2015 was issued in respect of those 10 Bills of Entry filed previous to B/E No.2516198 dated 01.01.2011. That the said show cause notice dated 25.03.2015 was Adjudicated by Commissioner of Customs, Mumbai by an Order-in-Original dated 23.03.2016 under which a penalty of Rs.5.00 Lakh is imposed upon the appellant against which appellant has preferred an appeal before CESTAT, Mumbai. That on receipt of Order-in-Original dated 23.03.2016 CC(Customs), Kolkata by Order No.05/2016 dated 22.04.2016 suspended appellants CHA licence under Regulation 19(2) of CBLR, 2013 which was further confirmed by Order-in-Original dated 16.05.2016 against which the present appeal has been filed.
2.4 Learned Advocate of the appellant argued that as per the provisions of Section 159 of the Customs Act, 1962; read with the preamble of CBLR, 2013; any action for the cause of action before 21.06.2013 could have been taken under CHALR, 2004. That such suspension already done under CHALR, 2004 was set aside by Honble Calcutta High Court and the appellant has continued to work from 2011 till April, 2011. That no suspension/continuation of suspension for the acts done in 2011 without appellants knowledge, can be taken under CBLR, 2013. That no specific offence report has been received by the Adjudicating authority and no show cause notice has been issued for revocation of appellants licence within 90 days, as per Regulation 20(1) of the CBLR, 2013. That even if CBLR, 2013 are presumed to be applicable then also continued suspension, after 90 days of receipt of Order-in-Original CAO No.COMMR/AKG/08/2016/ADJN.ACC(X) dated 23.03.2016, is not sustainable. Learned Advocate relied upon the following case laws in support of his argument.:-
(i) SSS Sai Shipping Services P.Ltd. v. CC(Gen.), Mumbai [2015 (329) ELT 412 (Tri.-Mumbai)]
(ii) Atharva Global Logistics v. CC(I&G), New Delhi [2015 (315) ELT 432 (Tri.-Del.)]
(iii) Mahindra Shipping Agency v. CC(General), Mumbai [2015 (32) ELT 264 (Tri.-Mumbai)
(iv) Master Cargo Services v. CC(Seaport-Import), Chennai [2015 (330) ELT 465 (Tri.-Chennai)
3. Shri S.K.Naskar, AC(AR) appearing on behalf of the Revenue argued that the course of action cannot be considered to be prior to CBLR, 2013 as the Order-in-Original dated 23.03.2016 was received by CC, Customs(Kolkata) on 08.04.2016 and suspension was done on 19.04.2016 as discussed by Adjudicating authority in para-33 of the Order-in-Original dated 16.05.2016. That against this Order-in-Original appellant approached High Court by filing WP No.479 of 2016 and by a final order dated 13.07.2016 Calcutta High Court dismissed the WP of the appellant with the direction to approach CESTAT to redress their grievance. That even if no action under CBLR, 2013 can be taken then also department can suitably amend the show cause notice for revocation of CHA licence for taking action under CHALR, 2004. Learned AR, therefore, strongly defended the confirmation Order-in-Original dated 16.05.2016 passed by the Adjudicating authority.
4. Heard both sides and perused the case records. After allowing Miscellaneous Application (EH) filed by the appellant, appeal is taken up for disposal. The issue involved in the present proceedings is whether confirmation of suspension order under Order-in-Original dated 16.05.2016 is justified as per the provisions of Regulation 19(2) of CBLR, 2013. It is the case of the appellant that the cause of action is for the period prior to CBLR, 2013 and as per the preamble to CBLR, 2013, no action can be taken under CBLR, 2013 for which action could have been taken under CHALR, 2004. It is the argument of the appellant that 10 Bills of Entry; for which Order-in-Original dated 23.03.2016 was passed by CC, Mumbai was not a new cause of action as a result of acts of Shri Samir Poddar and Shri Ravi Kotain and for those activities the suspension was already ordered earlier and has been set aside by Calcutta High Court by an order dated 02.12.2011 in WP No.990/2011, read with WP No.571 of 2012 filed by appellant.
4.1 In support of the above argument appellant has relied upon Section 159(A) of the Customs Act, 1962 and preamble to CBLR, 2013, reproduced below:-
[159A. Effect of amendments, etc., of rules, regulations, notifications or orders. Where any rule, regulation or order made or issued under this Act or any notification or order issued under such rule or regulation, is amended, repealed, superseded or rescinded, then, unless a different intention appears,
(a) revive anything not in force or existing at the time at which the amendment, repeal, supersession or rescinding takes effect; or
(b) affect the previous operation of any rule, regulation, notification or order so amended, repealed, superseded or rescinded or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any rule, regulation, notification or order so amended, repealed, superseded or rescinded; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed under or in violation of any rule, regulation, notification or order so amended, repealed, superseded or rescinded;
(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the rule, regulation, notification or order, as the case may be, had not been amended, repealed, superseded or rescinded.] Preamble to CBLR, 2013 is as follows:-
In exercise of the powers conferred by sub-section (2) of section 146 of the Customs Act, 1962 (52 of 1962), and in supersession of the Customs House Agents Licensing Regulations, 2004, except as respect things done or omitted to be done before such supersession, the Central Board of Excise and Customs hereby makes the following regulations, namely :- 4.1.1 In view of the above provisions action under CBLR, 2013 cannot be taken with respect to an action omitted to be done as per CHALR, 2004. Further for the act of the appellant and his employees on the same issue action of suspension was already taken with respect to B/E No.2516198 dated 01.01.2011. The Adjudication order dated 23.03.2016 passed by CC, Mumbai was with respect to bills of entry filed before 01.01.2011 and for the activities of the CHA and his employees. Suspension of CHA licence was made on 07.07.2011 which was set aside by Calcutta High Court and appellant was allowed to continue working as CHA. The cause of action for which now suspension has been ordered or confirmed is not new. Appellant raised all these issues before Adjudicating authority during the course of personal hearing on 04.05.2016 but Adjudicating authority remained silent on these points. Accordingly, it is held that for a cause of action happened before introduction of CBLR, 2013, no action could have been taken under CBLR, 2013. Confirmation of suspension made by the Adjudicating authority under Order-in-Original dated 16.05.2016 is bad in law and is required to be set aside. It is also held that for the same cause of action a second proceedings cannot be initiated when the matter in the earlier proceedings of suspension and revocation of appellants licence are pending before Calcutta High Court. It is not coming out of the records before this Bench as to what was the final outcome of show cause notice dated 08.06.2012 issued to the appellant for revocation of their CHA licence No.C-34 for which WP No.571/2002 was filed by the appellant.
4.2 It is also the case of the appellant that even if CBLR, 2013 are held to be applicable then also no show cause notice for revocation of their CHA licence has been issued to them within 90 days from the receipt of Order-in-Original dated 23.03.2016 passed by CC(ACC), Mumbai which was received by the Adjudicating authority on 08.04.2016 and that for continued suspension after 90 days confirmation of suspension ordered is not justified. Learned Advocate for the appellant has relied upon several case laws on this issue as per para-2.4 above. On perusal of the said relied upon case laws we find such a legal proposition has been decided by co-ordinate Benches of CESTAT. No evidence is brought on record by the department that notice for revocation of appellants licence has been issued to the appellant within 90 days of receipt of Order-in-Original dated 23.03.2016. No irregularity on the part of the appellant has been brought on record from 2011 to the date of confirmation of suspension.
5. In view of the above observations and legal proposition, confirmation of suspension of CHA licence No.C-34 of the appellant under Order-in-Original dated 16.05.2016 is not justified and is set aside. Appeal filed by the appellant is allowed.
6. Stay Petition filed by the appellant is disposed of.
(Operative part of the order was pronounced in the open court.) SD/ SD/ (P.K.CHOUDHARY) (H.K.THAKUR) MEMBER(JUDICIAL) MEMBER(TECHNICAL) sm 2 Appeal No.C/76231/16