Custom, Excise & Service Tax Tribunal
M/S. Kirti Cargo vs Commissioner Of Customs (Gen) on 6 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Customs Appeal No. 54527 of 2015
[Arising out of Order-In-Original No. 127/SM/Policy/2015 dated 20.11.2015 passed by Commissioner of Customs (General) New Delhi]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. B Ravichandran, 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?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Kirti Cargo Appellants
Vs.
Commissioner of Customs (Gen) Respondent
New Delhi Appearance:
Dr. Prabhat Kumar, Advocate for the Appellants Shri R K Garg, DR for the Respondent CORAM:
Hon'ble Ms Archana Wadhwa, Member (Judicial) Hon'ble Mr. B Ravichandran, Member (Technical) Date of Hearing/ Decision: 06.04.2016 FINAL ORDER NO.51233 /2016 Per B Ravichandran:
The appellant, a licensed Customs Broker, is before us against the order dated 20.11.15 of Commissioner of Customs (Gen), New Delhi confirming the suspension of Customs Broker license of the appellant.
2. Brief facts of the case are that the G Card holder employee of the appellant was alleged to have been involved in serious fraud of manipulating the value of export goods and using the license for import of paper / paper products by various importers. The order of suspension is challenged on various following grounds:-
A. The appellants are not involved in any fraudulent act in violation of Customs Act. They cannot be held responsible for the act of their employee in his personal capacity;
B. No inquiry or investigation has been conducted to clearly bring out role of the appellant in any wrongful act;
C. The suspension was confirmed on 20.11.15, so far no show cause notice under CBLR 2013, has been issued to them. Continued suspension without a proper notice is against the provisions of CBLR, 2013.
3. We have heard both the sides.
4. Learned Counsel for the appellant elaborated on each of the above grounds.
5. Learned AR reiterated the findings in the impugned order and submitted that the appellant cannot be given any relief now in the absence of completion of full inquiry and initiation of proceedings against them.
The admitted facts of the case are that the role of G Card Holder (Shri Sharafat Hussain) has not been brought out till now in the inquiry. This much has been mentioned in the order itself. The impugned order states that exact nature of collusion or otherwise with the importer remains to be determined as both the G Card holder and Shri Vinod Kumar, one of the key person working in EDI system, are absconding. And as such, investigation could not be completed. It is clear that in the absence of at least a prima facie case indicating the role of the appellant in various frauds, suspension of license will be harsh and unjustified. Further, more importantly, we find though the suspension was confirmed on 20.11.15, till date no show cause notice has been issued to the appellant. The time limit as prescribed in CBLR 2013, has apparently not been followed. In Eltece Associates vs. CC, Chennai [2016 (334) ELT 124 (Tri-Chennai), the Tribunal followed the earlier decision in Manjunatha Shipping Services vs. Commissioner [2014 (313) ELT 226 (Tri)] wherein it was held as follows:
9.?Regulation 22(1) is applicable for issuing both suspension order and revocation order. However Regulation 20(2) authorizes the Commissioner of Customs to suspend the licence of a CHA in emergent situations without following the procedure under Regulation 22(1). It is very obvious that immediate suspension of licence is permitted only when an enquiry is pending is contemplated. The non obstante clause Regulation 20(2) makes an exception only in the matter of suspension and not in the matter of revocation. So, it is implied that such inquiry has to be completed, within the time frame prescribed in various sub-regulations of Regulation 22 and a final view in the matter of revocation of licence is to be taken. In Lohia Travels & Cargo vs. CC [2016 (331) ELT 614 (Tri-Del)] and in Rudolph Thomas Lobo & Co. (P) Ltd. vs CC (Gen) Mumbai [2016 (331) ELT 636 (Tri-Mum)], the Tribunal examined various decided cases regarding time limit to be adhered to in case of suspension / revocation of license. The time limit prescribed in CBLR is held to be mandatory. In Buhariwala Logistics vs. CC, New Delhi [2016 (331) ELT 633 (Tri-Del)] the Tribunal examined the liability of CHA with reference to fraudulent activity undertaken by employee and G card holder of such CHA. The Tribunal held that if the employee had suo moto acted on his own for personal benefit beyond the scope of duty, the employer cannot be penalized. In the present case, the role of G card holder and the involvement of appellant either directly or through his G card holder are yet to be clearly alleged / established as no progress could be made in the inquiry. In the absence of any prima facie finding to that effect, suspension of license which amounts to stoppage of appellants business is not justified. Accordingly, we hold that the impugned order is not sustainable and set aside the same. The appeal is allowed.
(operative part of the order pronounced in the open court ) ( Archana Wadhwa ) Member(Judicial) ( B Ravichandran ) Member (Technical) ss 5