Custom, Excise & Service Tax Tribunal
Green View Logistics vs Commissioner, Customs (Airport &Amp ... on 3 September, 2021
Author: Dilip Gupta
Bench: Dilip Gupta
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. 1
Customs Appeal No. 50749 of 2021
(Arising out of Order-in-Original No. 44/MK/POLICY/2021 dated 11/06/2021 passed
by Commissioner of Customs (Airport & General), New Customs House, IGI Airport,
New Delhi)
M/s Green View Logistics .... Appellant
A-13, Gali No. 10, Dev Kunj, Raj Nagar
Part-II, Palam Colony, New Delhi-110077
VERSUS
Commissioner, Customs
(Airport & General)- New Delhi .... Respondent
New Customs House, Near IGI Airport
New Delhi-110037
APPEARANCE:
Shri Sarwar Raza, Advocate for the Appellant
Shri Sunil Kumar, Authorized Representative of the Department
CORAM: HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT
HON'BLE MR. C.J.MATHEW, MEMBER (TECHNICAL)
FINAL ORDER NO. 51791/2021
DATE OF HEARING : August 26, 2021
DATE OF DECISION : September 03, 2021
JUSTICE DILIP GUPTA
The order dated June 11, 2021 passed by the Commissioner
of Customs (Airport & General)1 revoking the Customs Brokers
License of the Appellant has been assailed in this appeal. The order
1. The Commissioner
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also seeks to forfeit the security deposit and imposes penalty of Rs.
50,000/- on the Appellant.
2. It transpires that earlier the Customs Brokers License of the
Appellant was suspended under regulation 16(1) of the Customs
Brokers Licensing Regulation, 20182 on October 01, 2020.
Subsequently, the suspension was revoked on October 19, 2020
under regulation 16(2).
3. Proceedings were, however, initiated against the Appellant for
revocation of the license under regulations 14 and 17 by issuance of a
show cause notice dated December 22, 2020 and in terms of
regulation 17 (1), the Appellant was called upon to show cause to the
Commissioner within 30 days of the receipt of the enquiry report as to
why it should not be held responsible for contravention of provisions
of regulation 10 (e) and as to why the license which was valid upto
21.12.2025 should not be revoked and the security should not be
forfeited in terms of regulation 14 read with regulation 17. The
Appellant was also required to show cause as to why penalty should
not be imposed under the provisions of regulation 18. An inquiry
officer was appointed and the inquiry report dated March 18, 2021
was submitted. It was sent to the Appellant on March 22, 2021
requiring the Appellant to submit a representation on the inquiry
report within thirty days. The Appellant submitted a reply dated
September 19, 2021 and an opportunity of personal hearing was also
granted to the Appellant on June 09, 2021. Thereafter, by an order
2. 2018 Regulations
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dated June 11, 2021, the Customs Brokers License of the Appellant
was revoked.
4. Shri Sarwar Raza, learned Counsel appearing for the
Appellant submitted that once the suspension of the Customs Brokers
License of the Appellant was revoked by order dated October 19,
2020 under regulation 16(2), the Commissioner could not have
proceeded under regulation 17 for revocation of the license. According
to the learned Counsel for the Appellant, the Commissioner could
proceed under regulation 17 only if the Commissioner had, instead of
revoking the suspension of the license, decided to continue the
suspension. Learned Counsel also submitted that when the
Commissioner had recorded findings in the order dated October 19,
2020 while passing the order revoking the suspension order, then the
same grounds could not have formed the basis for revoking the
license of the Appellant, in the absence of additional facts.
5. Shri Sunil Kumar, learned Authorized Representative of the
Department submitted that proceedings under regulation 16 relate to
suspension of a license, while proceedings under regulations 14 and
17 relate to revocation of license. Thus, even if the Commissioner had
revoked the suspension order under regulation 16(2), nothing
prevented the Commissioner from proceeding under regulations 14
and 17 for revocation of the license. The learned Authorized
Representative also submitted that findings were recorded by the
Commissioner in the order dated June 11, 2021 after taking into
consideration the inquiry report submitted by the Deputy
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Commissioner pursuant to the issuance of a show cause notice to the
Appellant, while the order for suspension of license was passed in a
situation where immediate action was necessary.
6. The submissions advanced by the learned Counsel for the
Appellant and the learned Authorized Representative appearing for
the Department have been considered.
7. In order to appreciate the contentions, it would be
appropriate to reproduce regulations 14 and 16 and the relevant
portion of regulation 17 and they are as follows:-
14. Revocation of licence or imposition of penalty- The Principal
Commissioner or Commissioner of Customs may, subject to the provisions
of regulation 17, revoke the license of a Customs Broker and order for
forfeiture of part or whole of security, on any of the following grounds,
namely:-
(a) failure to comply with any of the conditions of the bond executed by
him under regulation 8;
(b) failure to comply with any of the provisions of these regulations, within
his jurisdiction or anywhere else;
(c) commits any misconduct, whether within his jurisdiction or anywhere
else which in the opinion of the Principal Commissioner or Commissioner
of Customs renders him unfit to transact any business in the Customs
Station;
(d) adjudicated as an insolvent;
(e) of unsound mind; and
(f) Convicted by a competent court for an offence involving moral
turpitude or otherwise.
16. Suspension of license- (1) Notwithstanding anything contained in
regulation 14, the Principal Commissioner or Commissioner of Customs
may, in appropriate cases where immediate action is necessary, suspend
the license of a Customs Broker where an enquiry against such Customs
Broker is pending or contemplated:
Provided that where the Principal Commissioner or Commissioner of
Customs may deem fit for reasons to be recorded in writing, he may
suspend the license for a specified number of Customs Stations.
(2) Where a license is suspended under sub-regulation (1), the Principal
Commissioner of Customs or Commissioner of Customs, as the case may
be, shall, within fifteen days from the date of such suspension, give an
opportunity of hearing to the Customs Broker whose license is suspended
and may pass such order as he deems fit either revoking the suspension
or continuing it, as the case may be, within fifteen days from the date of
hearing granted to the Customs Brokers:
Provided that in case the Principal Commissioner of Customs or
Commissioner of Customs, as the case may be, passes an order for
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continuing the suspension, further procedure thereafter shall be as
provided in regulation 17.
17. Procedure for revoking license or imposing penalty- (1)The
Principal Commissioner or Commissioner of Customs shall issue a notice in
writing to the Customs Broker within a period of ninety days from the date
of receipt of an offence report, stating the grounds on which it is proposed
to revoke the license or impose penalty requiring the said Customs Broker
to submit within thirty days to the Deputy Commissioner of Customs or
Assistant Commissioner of Customs nominated by him, a written
statement of defense and also to specify in the said statement whether
the Customs Broker desires to be heard in person by the said Deputy
Commissioner of Customs or Assistant Commissioner of Customs.
(2) The Commissioner of Customs may, on receipt of the written
statement from the Customs Broker, or where no such statement has
been received within the time-limit specified in the notice referred to in
sub-regulation (1), direct the Deputy Commissioner of Customs or
Assistant Commissioner of Customs, as the case may be, to inquire into
the grounds which are not admitted by the Customs Broker.
(3) The Deputy Commissioner of Customs or Assistant Commissioner of
Customs, as the case may be, shall, in the course of inquiry, consider such
documentary evidence and take such oral evidence as may be relevant or
material to the inquiry in regard to the grounds forming the basis of the
proceedings, and he may also put any question to any person tendering
evidence for or against the Customs Broker, for the purpose of
ascertaining the correct position.
(4) The Customs Broker shall be entitled to cross-examine the persons
examined in support of the grounds forming the basis of the proceedings,
and where the Deputy Commissioner of Customs or Assistant
Commissioner of Customs declines permission to examine any person on
the grounds that his evidence is not relevant or material, he shall record
his reasons in writing for so doing.
(5) At the conclusion of the inquiry, the Deputy Commissioner of
Customs or Assistant Commissioner of Customs, as the case may be, shall
prepare a report of the inquiry and after recording his findings thereon
submit the report within a period of ninety days from the date of issue of
a notice under sub-regulation (1).
(6) The Principal Commissioner or Commissioner of Customs shall
furnish to the Customs Broker a copy of the report of the Deputy
Commissioner of Customs or Assistant Commissioner of Customs, as the
case may be, and shall require the Customs Broker to submit, within the
specified period not being less than thirty days, any representation that he
may wish to make against the said report.
(7) The Principal Commissioner or Commissioner of Customs shall, after
considering the report of the inquiry and the representation thereon, if
any, made by the Customs Broker, pass such orders as he deems fit
either revoking the suspension of the license or revoking the license of the
Customs Broker within ninety days from the date of submission of the
report by the Deputy Commissioner of Customs or Assistant Commissioner
of Customs, under sub-regulation (5):
Provided that no order for revoking the license shall be passed
unless an opportunity is given to the Customs Broker to be heard in
person by the Principal Commissioner of Customs or Commissioner of
Customs, as the case may be.
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8. Regulation 14 deals with revocation of license or imposition of
penalty. It provides that the Commissioner of Customs may, subject
to the provisions of regulation 17, revoke the license of the Customs
Broker and pass an order for forfeiture of part or whole of security on
the grounds mentioned in the said regulation. Regulation 16 deals
with suspension of license. It provides that notwithstanding anything
contained in regulation 14, the Commissioner of Customs may, in
appropriate cases where immediate action is necessary, suspend the
license of a Customs Broker where an inquiry against the Customs
Broker is pending or contemplated. It also provides that in such a
situation where the license has been suspended, a notice of
opportunity of hearing has to be provided to the Customs Broker,
whereafter the Commissioner of Customs may either revoke the
suspension or continue with it. In a case where the Commissioner of
Customs passes an order for continuing the suspension, further
procedure thereafter shall be as provided in regulation 17.
9. The submission of learned Counsel appearing for the
Appellant is that if the Commissioner decides not to continue with the
suspension order and in fact revokes the suspension order, then the
procedure contemplated under regulation 17 cannot be resorted to
revoke the license.
10. This submission advanced by learned Counsel for the
Appellant cannot be accepted. Proceedings for revocation of license
contemplated under regulations 14 and 17 are independent of the
proceedings for suspension of the license under regulation 16. Merely
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because the Commissioner of Customs decides not to continue with
the suspension order after hearing the Customs Broker, would not
divest the Commissioner of Customs of his power to proceed under
regulations 14 and 17 for revocation of the license. In fact regulations
14 and 17 can be resorted to by the Commissioner without even
suspending the license of a Customs Broker and a Customs Broker
cannot be placed in a better position if the license is suspended under
regulation 16(1) but such suspension is not continued under
regulation 16(2). Regulation 16 (2) only provides that if the
Commissioner decides to continue with the suspension order, then in
that case he would have to thereafter follow the procedure as
contemplated under regulation 17.
11. The second submission advanced by the learned Counsel for
the Appellant cannot also be accepted. The power exercised by the
Commissioner under regulation 16 (2) is summary in nature. An order
under regulation 16(2) to either revoke the suspension or continue
with it is passed after giving an opportunity of hearing to the Customs
Broker. On the other hand, the procedure under regulation 17
contemplates a full fledged inquiry. A notice has to be issued to a
Customs Brokers stating the grounds on which it is proposed to
revoke the license or impose penalty and a Customs Broker has to
submit a reply to the Deputy Commissioner of Customs nominated by
the Commissioner to submit statement of defense and also to specify
whether the Customs Broker desires to be heard in person. After the
submission of the written statement, the Deputy Commissioner has to
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inquire into the grounds which are not admitted by the Customs
Broker and for this purpose, the Deputy Commissioner has to consider
such documentary evidence and take such oral evidence as may be
relevant or material to the inquiry in regard to the grounds forming
the basis of the proceedings, and he may also put any question to any
person tendering evidence for or against Customs Brokers, for the
purpose of ascertaining the correct position. The Customs Broker is
also entitled to cross examine the persons examined and at the
conclusion of the inquiry, the Deputy Commissioner has to prepare a
report of the inquiry and after recording his findings thereon submit it
to the Commissioner. The Commissioner thereafter has to furnish to
the Customs Broker a copy of the report of the Deputy Commissioner
and require the Customs Broker to submit within the specified period
any representation that he may wish to make against the said report.
It is on a consideration of the report submitted by the Deputy
Commissioner and the representation made by the Customs Broker
that the Commissioner is required to pass an order either revoking
the suspension of the license or revoking the license. In this view of
the matter, the findings recorded under regulation 16(2) cannot in
any manner have any bearing on the findings recorded under
regulation 17.
12. It needs to be noted that a finding has been recorded in the
order dated June 11, 2021 that an attempt was made by the
Appellant to export restricted items by mis-declaring the Customs
Tariff Heading of the goods by M/s Balaji International through the
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Appellant as a Customs Broker and the Appellant failed to exercise
due diligence at the time of filing the shipping bill. A finding has also
recorded that both the exporter and the Customs Broker had stated at
the time of personal hearing that goods were restricted at the time
when the Shipping Bill was filed.
13. Thus, for all the reasons stated above, the impugned order
dated June 11, 2021 does not call for any interference in this Appeal.
The Appeal is, accordingly, dismissed.
(Order pronounced in the open Court on_03.09.2021_)
(JUSTICE DILIP GUPTA)
PRESIDENT
(C.J. MATHEW)
MEMBER (TECHNICAL)
Rekha
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Customs Appeal No. 50749 of 2021
CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
NEW DELHI
PRINCIPAL BENCH - COURT NO. 1
Customs Appeal No. 50749 of 2021
(Arising out of Order-in-Original No. 44/MK/POLICY/2021 dated 11/06/2021 passed
by Commissioner of Customs (Airport & General), New Customs House, IGI Airport,
New Delhi)
M/s Green View Logistics .... Appellant
A-13, Gali No. 10, Dev Kunj, Raj Nagar
Part-II, Palam Colony, New Delhi-110077
VERSUS
Commissioner, Customs
(Airport & General)- New Delhi .... Respondent
New Customs House, Near IGI Airport
New Delhi-110037
APPEARANCE:
Shri Sarwar Raza, Advocate for the Appellant
Shri Sunil Kumar, Authorized Representative of the Department
CORAM: HON'BLE MR. JUSTICE DILIP GUPTA, PRESIDENT
HON'BLE MR. P. ANJANI KUMAR, MEMBER (TECHNICAL)
DATE OF HEARING : August 26, 2021
DATE OF DECISION : September 03, 2021
ORDER
Order Pronounced (JUSTICE DILIP GUPTA) PRESIDENT (P. ANJANI KUMAR) MEMBER (TECHNICAL) Shreya