Custom, Excise & Service Tax Tribunal
Vilas Transport Company vs Commissioner Of Customs-Mumbai - ... on 23 September, 2022
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
MUMBAI
REGIONAL BENCH
Customs Appeal No. 88116 of 2019
(Arising out of Order-in-Original CAO No. 58/CAC/PCC(G)/RM/CBS(Adj) dated
25.10.2019 passed by the Commissioner of Customs (General), Mumbai.)
M/s. Vilas Transport Company ........Appellant
105, Uttam House, 89,
P. D'Mello Road, Carnac Bunder,
Mumbai - 400 009
VERSUS
Pr. Commissioner of Customs ........Respondent
(General), Mumbai New Customs House, Ballard Estate, Mumbai - 400 001 APPERANCE:
Shri D.S. Mane, Advocate alongwith Shri J.N. Tiwari, Advocate for the Appellant Shri Ram Kumar, Assistant Commissioner, Authorised Representative for the Respondent CORAM:
HON'BLE MR. SANJIV SRIVASTAVA, MEMBER (TECHNICAL) HON'BLE DR. SUVENDU KUMAR PATI, MEMBER (JUDICIAL) FINAL ORDER NO. A/86075 / 2022 Date of Hearing: 23.09.2022 Date of Decision: 23.09.2022 PER: DR. SUVENDU KUMAR PATI Revocation of suspension of CHA licence by the Tribunal after direction was given on 15.12.2011 for completion of proceeding if initiated under Regulation 22 of the CHALR, 2004 within 3 months that was reinstituted in 2019 after the Commissioner of Customs (General), Mumbai revoked the suspension of CHA licence in 2012, is assailed in this appeal.
C/88116/2019 2
2. Facts of the case in brief is that Appellant is a CHA licence holder since 1983 whose authorisation for operation at Chennai Customs port had been suspended and it was prohibited from operating as Customs House Agent in any of the Customs station at Chennai after mis-declaration in shipping bill was reported against its Exporter. Mumbai Customs had issued the CHA licence to the Appellant for which Commissioner of Customs (Imports), Chennai had sent the copy of offence report to Mumbai requesting for initiation of action against Appellant's company on the basis of which its CHA licence was suspended, Appellant was given personal hearing in April, 2011 and order No. 2014/11 was issued by the Commissioner of Customs (General), New Customs House, Mumbai directing dis- continuance of the service pending inquiry. Appellant preferred an appeal before the CESTAT Mumbai and got the desired relief vide order dated 24.03.2011, the operating portion of which reads:
"As contended by the learned Counsel for the Appellant that their CHA licence was suspended on 24.03.2011 and thereafter they were given a personal hearing on 18.05.2011 and their suspension was confirmed on 26.07.2011 and thereafter no proceedings were initiated under Regulation 22 of the CHALR, 2004. In view of these circumstances, we direct the Commissioner of Customs, Mumbai if they wish to initiate any inquiry against the Appellant under Regulation 22 of CHALR that should be completed within three months from today and during this period, C/88116/2019 3 they may issue charge sheet, initiate inquiry and complete the proceedings. If within the period of three months they fail to complete their proceedings under Regulation 22 of CHALR the order of suspension of CHA licence of the Appellant shall stand revoked."
On 30.04.2012 Commissioner of Customs (General), Mumbai vide his order No. 04/2012 revoked the suspension of CHA licence, in the said order he made an observation that as the investigation in this case is still under progress before the investigating unit i.e. SIIB (Import), Chennai, the inquiry could not be initiated against the M/s. Vilas Transport Company, for which, in compliance to terms of the CESTAT order dated 15.12.2011, the suspension order has been revoked subject to the outcome of the inquiry being contemplated against the CHA under Regulation 22 of CHALR, 2004. Then after Chennai Customs imposed penalty of Rs.5,00,000/- against the present Appellant vide its Order-in-Original dated 17.05.2018, copy of which was forwarded to the Mumbai Customs, Appellant was put to show-cause notice again on 01.01.2019, subjected to inquiry by the Assistant Commissioner of Customs, CEAC, NS- II, JNCH, Nhava Sheva who absolved the Appellant from further action. Revocation of CHA licence again was refused on the ground that no new incident has been noticed against the Appellant CHA in anywhere in India or in Mumbai in the past six years till the suspension was revoked and suggested for C/88116/2019 4 dropping the proceedings but vide Order-in-Original dated 25.10.2019 the Pr. Commissioner of Customs (General), Mumbai Zone-I revoked the licence of the Appellant under Regulation 20 of CHALR, 2004 (now Regulation 14 of CBLR, 2018) and directed forfeiture of entire security deposit amount. Appellant is before us assailing the said order of the Pr. Commissioner of Customs.
3. During the course of hearing of the appeal, learned Counsel for the Appellant Shri D.S. Mane alongwith Shri J.N. Tiwari submitted that subsequent punishment imposed on the Appellant is hit by the principle of double jeopardy as per provision contained in Article 20 Clause 2 of the Indian Constitution vis. a vis. Article 300 of the Criminal Procedure Code, for which alone the order of Principal Commissioner of Customs is unsustainable in law. He further submitted that Appellant's conduct at Chennai, which is allegedly carried out by some unauthorised act of omission and commission of one Mr. M. Sekar and Smt. Anuradha who were not agent of the Appellant but fraudulently used the Appellant licence, for which Appellant was subjected to penalty and suspension of its operation at Chennai Customs Zone and also revocation of its CHA licence order issued by the Mumbai Customs that got restored after specific direction of the CESTAT Mumbai and C/88116/2019 5 therefore, Appellant cannot be subjected to further inquiry and action after a gap of 8 years. Despite the fact that a clear direction was made to the Respondent-Department to restore Appellant's licence in the event of the failure on their part to conclude the inquiry within three months of receipt of the CESTAT order passed on 15.12.2011, initiation of proceeding on the same set of facts is irregular and forbidden by the principle of double jeopardy.
4. In response to such submissions learned Authorised Representative for the Respondent-Department Mr. Ram Kumar submitted that in the absence of compete offence report inquiry against the Appellant under CHA Regulation could not be conducted for which learned Commissioner of Customs (General), Mumbai vide his order dated 26.04.2012 revoked the suspension till the outcome of inquiry conducted under CHA Regulation 22 and soon after receipt of the Order-in-Original from Chennai inquiry was issued and communicated to the Mumbai Customs namely Respondent, inquiry was commenced and delay in completing inquiry has been adequately addressed by the Adjudicating Authority in the order itself that needs no interference by the Tribunal.
C/88116/2019 6
5. We have taken note of the submissions and perused the case record. At the outset we are of the view that principle of double jeopardy, be that enforceable under Article 20 Clause 2 of the Indian Constitution or Section 300 of the Code of Criminal Procedure, 1973 would only be taken as a shield against completion of trial or prosecution that resulted in conviction or acquittal, so as to prevent a subsequent trial or prosecution but it has no application to different trials or parallel proceedings in different forms for the same set of facts. In the instant case the proceeding against the Appellant was not concluded at the first instance within the time limit prescribed for such completion got over. Therefore, the protection available under double jeopardy, though can only be extended by Constitutional Courts, would not come to the rescue of the present Appellant since the first proceeding had not been completed but was aborted. However, when there is a clear finding of the CESTAT that in such an event of non- completion of the proceedings under CHALR, the order of suspension of CHA licence of the Appellant would stand revoked and it was revoked also by the Commissioner of Customs on 26.04.2012. But keeping such revocation a conditional one till the outcome of inquiry being contemplated under Regulation 22 of CHALR, 2004, that is found absent in the order of CESTAT C/88116/2019 7 passed on dated 15.12.2011 is arbitrary has beyond the competency of the Commissioner of Customs. Hence the order.
THE ORDER
6. The appeal is allowed and the order passed by the Pr. Commissioner of Customs passed under Regulation 27 of CHALR, 2004 in revoking the CHA License of the Appellant and forfeiting the security deposit is hereby set aside.
(Operative portion of the order pronounced in Court) (Dr. Suvendu Kumar Pati) Member (Judicial) (Sanjiv Srivastava) Member (Technical) Prasad