Custom, Excise & Service Tax Tribunal
P B Shipping &Amp; Agency Pvt Ltd vs Kolkata(Prev) on 12 November, 2018
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL,
EAST REGIONAL BENCH : KOLKATA
Appeal No.C/75752/2018
(Arising out of Order-in-Original No.CCP/WB/Tech/02/2017 dated
18.12.2017 passed by the Commissioner of Customs (Preventive), Kolkata)
M/s P.B.Shipping & Agency Pvt. Ltd.
...APPELLANT(S)
VERSUS
Commissioner of Customs (Preventive), Kolkata
...RESPONDENT (S)
APPEARANCE Shri Sukhendu Bhattacharya, Advocate, Shri R.N.Bandopadhyay, Consultant and Ms. Debi Parbat, Advocate for the Appellant Shri S.K.Naskar, AC(AR) for the Respondent.
CORAM:
HON'BLE SHRI P. K. CHOUDHARY, JUDICIAL MEMBER Hon'ble SHRI V.Padmanabhan, Member (Technical) Date of Hearing/Decision : 12.11.2018 ORDER NO.FO/76906/2018 Per Bench :
The present appeal has been filed by the appellant against the Order- in-Original No.CCP/WB/Tech/02/2017 dated 18.12.2017 in which the Customs Broker License issued to the appellant was revoked and the security deposit amounting to Rs.75,000/- was ordered to be forfeited.
2. The appellant is licensed under the Customs Broker Licensing Regulation, 2013 by the Commissioner of Customs (Preventive), Kolkata. They have been permitted to operate under Mumbai Customs by the Commissioner of Customs (General), Mumbai. The appellant filed certain bills of entry in Navasheva Customs House on behalf of M/s. Uni Colloids Impex Pvt. Ltd. for import of 'Wheat Gluten/Wheat Gluten Amugluten 160'. The DFIA License 2 Appeal No.C/75752/2018 was also attached for duty free items. The Customs Authority noticed that the licenses attached did not cover the goods under import. Consequently the goods were ordered for confiscation under Section 111 of the Customs Act, 1962. The show cause notice dated 11.11.2016 was issued to the importer as well as to the appellant for violation of the various sections of the Customs Act. The Commissioner of Customs (General), Mumbai forwarded a copy of such show cause notice to the Commissioner of Customs, Kolkata which served as an Offence Report under CBLR, 2013. The show cause notice dated 22.06.2017 was issued to the appellant for alleged violation of Regulation 11(d) of the CBLR, 2013, alleging that appellant has failed to sensitise the importer regarding the obligations under the Customs Law and Foreign Trade Policy. After the due process of enquiry and adjudication the impugned order was passed revoking the Customs Broker License as well as forfeiture of security deposit. This order stands challenged in the present proceedings.
3. With this background we heard Shri Sukhendu Bhattacharya, Advocate, Shri R.N.Bandopadhyay, Consultant and Ms. Debi Parbat, Advocate for the Appellant and Shri S.K.Naskar, AC(AR) for the Respondent.
4. On behalf of the appellant the following submissions are made;
i) The proceedings have been conducted in violation of time limits laid down in the CBLR, 2013. These Regulations prescribe the limit of 90 days, after the issuance of show cause notice, within which the report of enquiry is required to be made available to the Customs Broker. In this case the enquiry report has been made available after the expiry of 90 days and hence, he submitted that the entire proceedings are liable to be quashed. 3
Appeal No.C/75752/2018
ii) On merit also he submitted that the impugned order is not justified. He brought to our notice that the show cause notice for the alleged customs offence dated 11.11.2016 issued by the Commissioner of Customs, Mumbai was adjudicated by issue of the Order dated 14.09.2018. In the said order, while upholding the confiscation under Section III of the Customs Act, the ld. Commissioner has observed that there is no jusitification to hold that the appellant (who was one of the noticees) has failed to sensitise his client i.e. the importer. Accordingly, no penalty has been imposed on the appellant by the ld. Commissioner.
iii) Finally he submitted that the impugned order may be set aside.
5. Ld. DR justified the impugned order.
6. Heard both sides and perused the appeal records.
7. One of the arguments raised against the impugned order is that of time limit. The Regulation 20(5) of the CBLR, 2013 specifies that the enquiry report on alleged offence is required to be made available to the Customs Broker within a period of 90 days from the date of show cause notice proposing action under CBLR, 2013. In the present case we note that the show cause notice has been issued on 22.06.2017, but after conclusion of the enquiry the report has been made available to the appellant only on 24.11.2017, even though the same has been signed on 09.10.2017. This is clearly after the period of 90 days specified in the Regulation 20(5). Non- observance of this time limit itself will render the proceedings liable to be quashed.
8. On merit, we note that the alleged offence has taken place in Navasheva Customs House, Navi Mumbai. The appellant has filed bills of entry for import of certain goods for M/s. Uni Colloids Impex Pvt. Ltd. by enclosing 4 Appeal No.C/75752/2018 certain DFIA Licenses. The Jurisdictional Customs Authorities have found that the attached licenses did not cover the goods under import and hence have held that imported goods are liable for confiscation. But the allegation against the appellant is that they have failed to discharge the obligation cast on them in terms of Regulation 11(d) of the CBLR, 2013. This casts the responsibility on the Customs Broker to sensitise his client regarding various provisions of Customs Act and Import Export Regulations. After perusal of the record of this case we find that there is no specific evidence produced by the Revenue to the effect that appellant have failed to comply with the Regulation 11 (d). The Jurisdictional Commissioner, while adjudicating the customs offence has also absolved the appellant from imposition of any penalty under the Customs Act. He has further observed in passing in the Order that the appellant cannot be held under Regulation 11(d).
9. In view of the above discussions, we find no justification for the extreme steps taken by the lower authority in ordering for forfeiture of the security deposit and revoking the customs broker license.
10. In the result, the impugned order is set aside and the appeal is allowed.
(Dictated and Pronounced in the Open Court)
S/d. S/d.
(P. K. CHOWDHARY) (V.Padmanabhan)
MEMBER (JUDICIAL) MEMBER (TECHNICAL)
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