Custom, Excise & Service Tax Tribunal
M/S Leo Cargo Services vs Cc, New Delhi on 22 July, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. 1
Customs Appeal No. 51156 of 2016
(Arising out of order-in-original No. 15/SM/POLICY/2016 dated 22.03.2016 passed by the Commissioner of Customs (General), NCH, New Delhi)
DATE OF HEARING : 20.07.2016
DATE OF DECISION : 22.07.2009
FOR APPROVAL AND SIGNATURE :
HONBLE MR. JUSTICE (DR.) SATISH CHANDRA, PRESIDENT
HONBLE 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 LEO Cargo Services . Appellant
(Rep by Sh. Piyush Kumar, Adv)
VERSUS
CC, New Delhi . Respondent
(Rep. by Sh. S.K. Sheorin & Ms. Suchitra Sharma, DRs) CORAM : HONBLE MR. JUSTICE (DR.) SATISH CHANDRA, PRESIDENT HONBLE MR. B. RAVICHANDRAN, MEMBER (TECHNICAL) ORDER NO. 52518/2016 PER B. RAVICHANDRAN :
The appeal is against the order dated 22.03.2016 of the Commissioner of Customs (General), Airport, New Delhi. The Appellant is a licensed customs broker engaged in clearance of import/export cargo through Customs. The present appeal is against the impugned order confirming suspension of the Customs Broker Licence given to the Appellant.
2. Heard both sides duly represented by Shri Piyush Kumar, advocate for the Appellant and Shri S.K. Sheorin along with Ms. Suchitra Sharma, ARs for the Revenue. It is clear that the licence of the Appellant was suspended on 23.02.2016 and later such suspension was confirmed by the impugned order. The perusal of the order reveals that the suspension was ordered mainly on the ground that the Appellant has contravened the provisions of Regulation 11(j) and 11(m) of the Customs Brokers Licensing Regulation, 2013. The lower authority held that, based on the report received from ADG, DRI, Ahmedabad, that the Appellant has not submitted the documents called for by the investigating officer. The Officers of DRI conducted certain enquiries against the two importers with reference to mis-classification of goods imported by them. The clearance of these goods was handled by the Appellant. Accordingly, the Chief Executive of the Appellants company was summoned to appear before the Officers on 17.11.2015. Admittedly, the said summon was served only on 19.11.2015. Again another summon was issued to appear on 07.12.2015. The Appellant informed the inquiry Officers that due to medical reasons he could not travel to Ahmedabad. Thereafter, on 09.02.2016, Shri Sanjeev Maggu of the Appellants company appeared before the Officers and gave a statement voluntarily. The allegation against the Appellant is that, they have not produced the documents with reference to imports made by two importers for investigation. It is the case of the Appellant that a search was conducted in the premises of the Appellant and all the documents available (serially numbered from 1 to 161) alongwith the hard disc of the computer has been taken over by the Officers on 15.09.2015 itself. In fact, on completion of investigation show cause notice against one of the importers (M/s Cosmo Ventures Inc) was issued by the DRI on 04.02.2016. No allegation has been made against the Appellant in the show cause notice.
3. We find that the Appellant mainly assailed the suspension order on two grounds; (a) Regulation 11(j) & (m) were not violated by them, and (b) the suspension ordered on 23.02.2016 has not been followed by action under Regulation 20 within a period of 90 days of receipt of offence report. Till date, they have not got any notice under Regulation 20.
4. We find a strong force in the plea of the Appellant on both the grounds. Firstly, Regulation 11(j) reads as under :
A Customs Broker shall not refuse access to, conceal, remove or destroy the whole or any part of any book, paper or other record, relating to his transactions as a Customs Broker which is sought or may be sought by the Commissioner of Customs. It is not clear how the allegation of violation of such Regulation has been sustained by the lower authority. It is not the case where the Appellant refused to access, or concealed, or removed or destroyed any document. It is clear that a search has been conducted and documents have been received from the Appellant. The representative of the Appellant also appeared before the investigating Officers and deposed statement under Section 108. We fail to understand how the strong allegation of refusal, removal or destruction of documents could be levelled against the Appellant in these facts of the case. Even otherwise, we find that till date no follow up by way of show cause notice under Regulation 20 has been issued for revocation of Appellants licence. The offence report has been recorded in the impugned order which resulted in the suspension. As such, the time limit of 90 days prescribed has already lapsed. It is held in catena of decision by High Courts and Tribunal that the time limit prescribed in CBLR, 2013 is mandatory and failure to adhere the same will make the action without jurisdiction. Regarding continued suspension without timely action under Regulation 20, reference can be made to Tribunals Final Order No. 52104/2016 dated 08.06.2016. The mandatory nature of time limits prescribed under CBLR, 2013 has been analyzed and upheld by the Honble Madras High Court in many decisions. The latest decision is in Saro International Freight System, 2016 (334) ELT 0289 (Mad).
5. Considering the above analysis and discussion, we find no justification in the action taken in the impugned order. Accordingly, we set aside the same and allow the appeal.
(Pronounced in the open court on 22.07.2016) (JUSTICE DR. SATISH CHANDRA) PRESIDENT (B. RAVICHANDRAN) MEMBER (TECHNICAL) Golay 2