Custom, Excise & Service Tax Tribunal
Ruan Shipping & Ors vs C.C.,New Delhi on 17 November, 2016
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,
WEST BLOCK NO.2, R.K. PURAM, NEW DELHI-110066
BENCH-DB
COURT III
Customs Appeal No.C/52898 /2015-CU [DB]
[Arising out of Order-in-Original No.104/BBG/SUSPENSION/ POLICY/2015 DATED 31.07.2015 passed by the Commissioner (General), Customs & Central Excise, NCH, New Delhi].
Customs Appeal No.C/52328/2016-CU [DB]
[Arising out of Order-in-Original No.45/SM/POLICY/2016 DATED 03.06.2016 passed by the Commissioner (General), Customs & Central Excise, NCH, New Delhi]
For approval and signature:
HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
HONBLE MR. ASHOK K. ARYA, 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?
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
3
Whether Their Lordships wish to see the fair copy of the Order?
4
Whether Order is to be circulated to the Departmental authorities?
Ruan Shipping & Ors. Appellant
Vs.
C.C.,New Delhi Respondent
Present for the Appellant : Mr. Prem Ranjan Kumar, Advocate
Present for the Respondent: Mr.Govind Dixit, D.R.
Coram: HONBLE MR. S.K. MOHANTY, MEMBER (JUDICIAL)
HONBLE MR. ASHOK K. ARYA, MEMBER (TECHNICAL)
Date of Hearing: 28.10.2016
Pronounced on :17/11/2016
FINAL ORDER NO. 55102-55103/2016
PER: S.K. MOHANTY
The appellant has filed the appeal No.C/52898/2015 against the order dated 31.07.2015 confirming continuation of the suspension of CHA license. Further, appeal No.C/52328/2016 was filed against the order dated 03/06/2016, in which the CHA license issued to the appellant was ordered to be revoked and security deposit of Rs.75,000/- was also ordered for forfeiture. Both the orders were passed by the Commissioner, Customs (General), NCH, New Delhi.
2. Brief facts of the case are that the appellant is a Customs broker, issued with the license, which is valid upto 10.10.2021. The Commissioner of Customs, Inland Container Depot, Patparganj and other ICDs informed the Commissioner of Customs (General), New Delhi that Shri Mohit Tyagi, an employee of the appellant had forged the signature of 2 Superintendent (Customs) in ICD Parparganj, New Delhi as well as the signature of Shri Satish Kumar, G-Card holder of the appellant. Based on above information contained in letter dated 02.07.2015, the Commissioner of Customs (General), NCH, New Delhi vide Order dated 14.07.2015 has suspended the Customs broker license issued in favour of the appellant with immediate effect. There after, upon compliance of the Customs Brokers License Regulation, 2013 (CBLR), the Commissioner of Customs (General) NCH, New Delhi vide order dated 03.06.2016 has revoked the license and also forfeited security deposit made by the appellant. Hence, this present appeal before the Tribunal.
3. Shri Prem Ranjan Kumar, ld. Advocate appearing for the appellant submits that the ld. Commissioner (Customs) failed to observe the time limit prescribed under CBLR, 2013, and accordingly, he prays for setting aside the order dated 03.06.2016.
4. The ld. Advocate has submitted a date chart showing sequence of events and the time taken between submission of offence report and passing of the order for rejection of the CHA License, which is extracted herein below:-
CBLR, 2013 Purpose Specified Time Period Events Offence report dt. 2.7.2015 19(1) Suspension of Licence vide O-I-O No. 95/BBG/Suspension/ Policy/2015 20(2) Confirmation of suspension of licence vide O-I-Original No.104/BBG/Policy/2015 dated 31.7.2015 20(1) Issuance of Show Cause Notice to the CHA/CB by the Commissioner.
Within 90 days from the date of receipt of an offence report.
Show Cause Notice No. 40/2015 dated 30.9.2015 issued under CBLR, 2013.
20(5) Preparation of Report of Inquiry by Deputy/Assistant Commissioner.
Within 90 days from the date of issuance of the Show Cause Notice Inquiry officer Report dated 29.12.2015 20(6) Commissioner to furnish a copy of Inquiry Report to CB Disagreement Note dated 25.02.2016 20(7) Passing of Order by the Commissioner.
Within 90 days from the date of submission of the Inquiry Report.
Revocation of Licence vide O-I-O No. 45/SMP/Policy/2016 dated 3.6.2016 Total Duration 270 DAY or 9 MONTHS.
5. Referring to the above date chart, the ld. Advocate submits that the time limit of 270 days or 9 months prescribed in the CBLR 2013, has not been adhered to inasmuch as the Department took 340 days to complete the proceedings for revocation of the license.
6. On the other hand, Shri Govind Dixit, the ld. A.R. appeared for the Revenue reiterates the findings recorded in the impugned orders.
7. On perusal of the case records, we find that the offence report was submitted by the Commissioner of Customs ICD, Parparganj on 02.07.2015; that the show cause notice proposing revocation of the license was issued on 30.09.2015; that the enquiry report was submitted on 29.12.2015 and that the impugned order was passed on 03.06.2016. It is an admitted fact on record that from the date of the offence report and passing of the impugned order, there is a gap of 340 days. With regard to the time limit, the CBLR mandates that the proceedings for revocation of license shall be completed within 270 days (9 months) from the date of receipt of offence report. With regard to the time limit, the Honble High Court in the case of Madras A.M. Ahamed & Co. vs. Commissioner of Customs (Imports), Chennai reported in 2014 (309) ELT 433 (Mad.) have held as under:-
20. The time limit prescribed in Regulation 22(1) has to be understood in the context of the strict time schedule prescribed in various portions of the Regulations. Regulation 20(2), for instance, entitles the Commissioner, to suspend the licence of an agent, in appropriate cases where immediate action is necessary. Regulation 22 (3) prescribes a time limit of 15 days. Regulation 22(1) prescribes a time limit within which action is to be initiated. It also prescribes the time limit under Regulation 22 (5). Therefore, considering the fact that the whole proceedings are to be commenced within a time limit and also concluded within a time frame, I am of the view that the show cause notice issued to the petitioner on 8.5.2010 with a copy marked to the first respondent should be taken as the date of receipt of the offence report. Consequently, the period of 90 days should commence only from that date. If so calculated, the impugned proceedings have obviously been initiated beyond the period of 90 days.
8. Further, the Honble Madras High Court in the case of Saro International Freight Systems vs. Commissioner of Customs, Chennai reported in 2015 - TIOL - 2916 - HC - MAD - CUS., in contest with the time limit prescribed by CBLR, 2013 have held as under:-
28. .. It is pertinent to mention here that the CBLR, 2013 have replaced the CHA Regulations. The CHA regulations did not have any time limit to complete the proceedings. Therefore, by a Circular 09/2010 dated 8.4.2010, the necessary to include a time limit for initiating action was addressed by the Board after filed inspection and by an notification dated 8.4.2010, amendments prescribing time period for initiating action and completing proceedings was made. The same was given effect by notification dated 20.1.2014. Whereas, under CBLR, 2013 having found the necessity to prescribe a period, the Central Board, the statutory authority had included the same in Regulations itself, when they were brought not in force. Therefore, when time light is prescribed in Regulations, which empowers action under Regulation 18 by following the procedure in Regulation 20(1), the use of the term shall cannot be termed as directory. Under such circumstances, the rule can only be termed as Mandatory.
9. We find the Honble High Court decision cited above are directly dealing with CBLR and Sanctity time limit under which the proceedings have to be completed. In the present case, since the impugned order was issued by the Commissioner without adhering to the time schedule prescribed in CBLR, we are of the view that the same is liable to be set aside. Accordingly, we set aside the impugned order dated 03.06.2016 of the Original Authority and allow the appeal in favour of the appellant.
10. In view of the fact that we are setting aside the order dated 03.06.2016 for revoking the license, we are dismissing the appeal No.52898/2015 passed against the order dated 31.07.2015 as infructuous.
11. Both the appeals are disposed of accordingly.
[Pronounced in the open Court on ____________)
(ASHOK K. ARYA) (S.K. MOHANTY)
MEMBER (TECHNICAL) MEMBER (JUDICIAL)
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