Custom, Excise & Service Tax Tribunal
4. Whether Order Is To Be Circulated To ... vs M/S Ramaans Total Logistics Pvt.Ltd on 19 June, 2014
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT AHMEDABAD
COURT - I
Appeal No.C/11201/2014
Arising out of: OIO No.03/2013-14, dt.28.02.2014
Passed by: Commissioner of Customs, Jamnagar
For approval and signature:
Mr.M.V. Ravindran, Honble Member (Judicial)
Mr. H.K. Thakur, Honble Member (Technical)
1. Whether Press Reporters may be allowed to see the No
Order for publication as per Rule 27 of the CESTAT
(Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether their Lordships wish to see the fair copy of Seen
the order?
4. Whether order is to be circulated to the Departmental Yes
authorities?
Appellant:
M/s Ramaans Total Logistics Pvt.Ltd.
Respondent:
CC (Prev.) Jamnagar Represented by:
For Assessee: Shri V.M. Doiphode, Adv. For Revenue: Dr. Jeetesh Nagori, Addl.Commissioner (AR) CORAM:
MR.M.V. RAVINDRAN, HONBLE MEMBER (JUDICIAL) MR. H.K. THAKUR, HONBLE MEMBER (TECHNICAL) Date of Hearing:24.04.2014 Date of Decision:19.06.2014 Order No. A/11114 / 2014, dt.19.06.2014 Per: M.V. Ravindran
1. This appeal is directed against OIO No.03/2013-14, dt.28.02.2014, vide which the CC (Prev.) Jamnagar has rejected the application filed by the appellant for change of constitution of the firm proprietorship to private limited company in the CHA licence.
2. Ld.Counsel appearing on behalf of the appellant would submit that the appellant has made an application for change in constitution on 23.02.2011 for change in CHA license which was held in the name of Shri K.J. Bhayani to M/s Raamans Total Logistics Private Limited. The said application/letter of the appellant was corresponded with various letters from the Department and in a letter dt.09.09.011, the Customs authorities sought more details from M/s Raamans Total Logistics Private Limited. It is his submission that during correspondence with Department, proprietor Shri K.J. Bhayani expired on 27.11.2011. It is his submission that the adjudicating authority had in the order held that the appellant has filed/applied for fresh license on 09.04.2012 without revealing the death of the license holder. It is his submission that this finding seems to be inappropriate as the Revenue authorities have themselves directed appellant to file an application in proper format vide letter dt.16.01.2012. He would submit that the adjudicating authority has relied upon the provisions of Customs House Agents Licensing Regulations, 2004 (hereinafter referred to as CHALR) and relying upon the Regulation 15 of CHALR, they rejected the change in the constitution. He would then draw our attention to the judgment of the Honble Supreme Court in the case of M/s Automotive Tyre Manufacturers Association Vs Designation Authority 2011 (263) ELT 481 (SC) for the proposition that any order passed by the Commissioner of Customs is a quasi-judicial order if it contains the details of the allegations, defense and the findings. He would submit that CC (P) Jamnagar has specifically recorded the issue, defense and findings and the order and hence this order should be considered as an order passed by an quasi-judicial authority. He would buttress the proposition while relying upon the various decisions which held that imposition of anti dumping duty is a quasi-judicial function can be challenged before the Tribunal. He would then draw our attention to the judgment of Hon'ble High Court of Kerala in the case of Collector of Customs, Cochin Vs State of Kerala 1993 (66) ELT 351 (Ker.) for the proposition that the said judgment needs to be read for meaning of the word per incuriam as it is his submission that Revenue is relying upon the Tribunals decision in the case of M/s S.N.M. Agency Vs CC Mumbai 2014-TIOL-333-CESTAT-MUM for the proposition that the Customs Brokers Licensing Regulations, 2013 (hereinafter referred to as CBLR) cannot be pressed into service for filing an appeal before the Tribunal except as provided. He would draw our attention to the judgment of the Hon'ble High Court of Bombay in the case of Electrofronts Vs UoI 2003 (162) ELT 1182 (Bom.) for the proposition that in CHALR, the regulation provided for appeal before the Chief Commissioner against an order passed other than suspension or revocation of licence, while in the current CBLR, there is no regulation for filing an appeal before the Chief Commissioner but instead Regulation 21 specifically states that appeal shall lie to CESTAT against any order of the authorities. He rely upon this case to drive home the point that when there is a substantive right which has provided specifically in the earlier regulation which has been now also considered in the regulation and appeal mechanism has been provided. He would submit that an issue of non-renewal of the license would affect the livelihood of the employees working with the appellant as also the right to earn livelihood of the appellant, which cannot be rendered remedy-less. He would rely upon the decision of Honble Supreme Court in the case of Subhas Photographics Vs UoI 1993 (66) ELT 3 (SC) and in the case of Tika Ram & Sons Vs Commissioner of Sales Tax, Lucknow [1968] 22 STC 308 (SC) for the proposition that the Apex Court has specifically interpreted the word in particular which occurred in Section 166 of Customs Act, 1962. He would further elaborate that the provisions of Section 146 of Customs Act provides for licenses of CHA and also regulations to be made by the authorities. He would draw our attention to the said Section and submit Section 146 (2) of the Customs Act, 1962 provides that the regulation be made by Government of India, which would in particular include few clauses indicated therein. He would submit that Revenues case is that the regulations only provides for appeal against suspension or revocation of license and the words used in particular having interpreted by the Apex Court to hold that the power is confined only to peripheral or procedural matters. He would submit that the impugned order be set aside and authorities be directed to change the constitution of CHA license No.CHA/JMR/R/20/2003 from Proprietor ship to Private Limited Company.
3. Ld.Departmental Representative, on the other hand, would draw our attention to the provisions of Section 146 of Customs Act, 1962. After reading the said Section, he submits that CHALR or CBLR, as the case may be, have been made under the provisions of Section 146 (2). He would submit that the provisions of Section 146 (2) only talk about the making of regulations for filing appeals, if any, against an order of suspension or revocation of license. It is his submission that in the case in hand, CC (P) Jamnagar has only issued an administrative order in rejecting the application filed by the appellant for change in constitution of CHA license. He would then draw our attention to the decision of the Tribunal in the case of M/s SNM Agency (supra) and submit that in Para 5 of the said order, the co-ordinate Bench of the Tribunal has specifically came to the conclusion that provisions of CBLR cannot be pressed into service and presumed to have made the provision for filing an appeal against any order passed under CBLR when the provisions of Section 146 are specific. He would also submit that this case does not fall under provisions of CBLR but falls under the provisions of CHALR which did not provide for any appeal against an order passed for declining the request for change in constitution. He would then submit that even Hon'ble High Court of Bombay in the case of S.R. Sale & Co. 2013 (295) ELT 653 (Bom.) has specifically held that the regulations constitute a self contained code and hence regulation 21 cannot be pressed into service for filing an appeal before the Tribunal. It is also his submission that the appellant is not remedy-less; he can definitely approach Hon'ble High Court under Article 226 of Constitution of India. He would also rely upon the decision of co-ordinate Bench of the Tribunal in the case of M/s A.D. Jayaveerapandia Nadar & Bros 2012 (1) ECS (81) (Tri-Che.), wherein it is held that there is no appeal which lies against order rejecting application for renewal of CHA license. He would also draw our attention to the decision of this Tribunal in the case of Amit K. Dedhia Vs CC Jamnagar 2013 (295) ELT 84 (Tri-Ahmd) wherein the Single Member Bench has held that no appeal lies against prohibition order passed by Commissioner of Customs from operating in and around the Customs area. He would also submit that the same view has been expressed by the co-ordinate Bench of the Tribunal in the case of G.P. Jaiswal Vs CC Lucknow 2008 (226) ELT 707 (Tri-Del), wherein it was held that appeal of the Tribunal is provided under the law only against the order of suspension or provision of license. It is his submission that this order being administrative, the matter may be disposed of and the appeal be dismissed.
4. Ld.Departmental Representative, while giving the factual position would also submit that the appellant herein had not kept Department informed about the death of the proprietor in respect of said CHA license and filed an application for issuing of license in the name of the new company on 09.04.2012. He would submit that this action of the appellant itself indicates that they were aware of the change in constitution of the license would not permitted after the death of the CHA license holder late Shri K.J. Bhayani. He would submit that the application of the appellant was correctly rejected as they had not apply for the license before the death of the license holder and the license was not issued to them before the death of the license holder.
5. Ld.Counsel, in rejoinder, would submit that earlier CHALR provide for an appeal against the said order before the Chief Commissioner, the power which has been taken away in CBLR, hence even if they approach to Chief Commissioner, it would be hit by limitation as also the provision as CBLR has been issued in supersession of the CHALR.
6. Ld.Departmental Representative, countering this rejoinder, would submit that CBLR is very specific in the preamble and it lays down that any Act or omitted to be done, before supersession can be decided under the regulation of CHALR.
7. We have considered the submissions made at length by both sides and perused the records. The issue that calls for reconsideration is whether the Order No. 03/2013-14, dt.28.02.2014 can be appealed against before us as per CHALR which has been superseded by CBLR.
8. At the outset, the preliminary objections raised by the Revenue authorities needs to be considered. The Revenue has contended that the order dt.28.02.2014 which is passed by CC (Prev.) Jamnagar is an administrative order and hence cannot be appealed against before the Tribunal. We find that they have relied upon the decision of the Tribunal in the case of M/s S.N.M. Agency (supra) for the said proposition. It was also contended by the Revenue that the order which has been passed is not under CBLR but under CHALR.
8.1 On deeper perusal of the said order dt.28.02.2014 of CC (Prev.) Jamnagar, we find that the said order is recording the facts of the case, the defense raised by the appellant and also the findings of the Commissioner and subsequently an order. In our view, the entire proceedings which has been conducted by CC (Prev.) Jamnagar is falling within the four corners of the words quasi-judicial functioning. We find that the ld.Counsel was correct in submitting that the judgment of the Apex Court in the case of Automotive Tyre Manufacturers Association (supra) has held that if any order is passed in a format which indicate quasi-judicial functioning, then it is an order passed by quasi-judicial authority. We now proceed to address the submissions made by the Revenue that the appeal under CBLR in respect of such an order cannot be filed before the Tribunal for which he relied upon the decision of the Tribunal in the case of S.N.M. Agency (supra). On perusal of the said judgment, on the first blush, we thought the said order covers the issue; however on deeper reading we find that the said judgment is passed by the co-ordinate Bench of the Tribunal in an issue where there was prohibition of CHA in functioning within the Customs House for improper activities related to that case. We feel that in the case of S.N.M. Agency, the Tribunal, while holding that no appeal lies before the Tribunal, specifically recorded that CBLR 2013 has been framed under the powers conferred under Section 146 (2) and there is no provision for filing appeal against an order of prohibition. In our considered view, an order of prohibition is totally different and on another footing than the order which has been passed rejecting the change in constitution of CHA license holder, we hold that the ratio as has been decided by the said decision, may be correct in the facts & circumstances of that case, needs to be applied in peculiar circumstances. In the case in hand, we find that the adjudicating authority has passed an order in February 2014 while invoking the provisions of regulation 15 of CHALR which itself, in our view, is incorrect as on the date of the issuing the order, CC (Prev.) Jamnagar would have passed the order under the regulation which are in existence.
9. We now revert to the factual matrix of this case. On perusal of the records, we find that it is undisputed that CHA license No.CHA/JMR/R/ 20/2003 was issued in the name of Shri.K.J. Bhayani and the said license was renewed from time to time and was valid till 28.09.2016. It is seen from the records that the license holder Shri K.J. Bhayani had on 23.02.2011 applied for change in constitution specifically on the ground that he was not maintaining good health due to old age. We also find that 26.02.2011, in furtherance of letter dt.23.02.2011 of Shri K.J. Bhayani, the appellant M/s Ramaans Total Logistics Pvt.Ltd. sought permission from the CC (Prev.) Jamnagar for change in constitution and as also sought permission to continue the licenses till the permission is granted for change in the constitution. The said letter was followed by M/s Ramaans Total Logistics Pvt.Ltd by a letter dt.28.07.2011 wherein some oral queries were answered and informed to the authorities that the change in the constitution is permitted under Regulation 16(1) of CHALR. We find that on 09.09.2011, the office of CC (Prev.) Jamnagar informed the appellant herein that on scrutinizing the said application for change in the constitution of concerned CHA license issued to Shri Kanaiyalal Jamnadas Bhayani, some more documents are required and they were directed to file the same. The appellant herein filed the requisite documents by the letter dt.24.09.2011. On 30.09.2011, the appellant again, on some oral queries, enclosed remaining documents and filed the same in the office of CC (Prev.) Jamnagar. In response to such letter, the authorities vide letter dt.05.10.2011 directed the appellant to file further documents authenticated by appellant, which was done on 12.10.2011. Subsequently, by further correspondences, the appellant on 11.11.2011 complied with all the requirements. We also find that despite so many correspondences with the authorities, the authorities did not change the constitution in the CHA license and vide letter dt.16.01.2012, the office of CC (Prev.) Jamnagar informed Shri K.J. Bhayani to continue the operations in the name of Shri K.J. Bhayani operated by M/s Ramaans Total Logistics Pvt.Ltd till 16.04.2012 and directed the appellant to obtain fresh CHA licenses in the name of the new company. On such communication from the office of CC (Prev.) Jamnagar, the appellant again prepared an application and filed the same with the authorities on 09.04.2012. From the chronology of events as recorded by us, it could be seen that the appellant had been diligent enough to file application for change in the name of the constitution before the death of the proprietor Shri K.J. Bhayani. In our considered view, keeping aside all the semanties which have been taken up by both sides on factual matrix, the office of the CC (Prev.) Jamnagar, had, in fact, was considering positively change in the constitution of CHA license No.CHA/JMR/R/20/2003. Due to delay in the decision making and sad demise of proprietor on 27.11.2011, the Revenue authorities cannot hold that change in constitution would not be possible to be done so, as the issue will now fall under the provisions of Regulation 16(2) of CHALR. In our considered view, this approach of the authorities due to delay in ordering change would be defeating the very purpose of the CHALR where provisions for the change in the constitution of the CHA license were mandated. We find that the CHALR had specific provision which enabled the appellant to seek change in constitution of CHA license holder and if it was done so in diligent manner by Revenue authorities, the current situation would not have arisen. Since the impugned order is passed on 28.02.2014, when CBLR was in the statute, we are of the view that the order which has been passed by CC (Prev.) Jamnagar could be challenged before us. In the facts and circumstances of this case, we find that the change in the constitution of the license should not have been denied to the appellant by the authorities.
10. In view of the foregoing, we set aside the impugned order with a direction to the office of Commissioner of Customs (Preventive) Jamnagar to change the constitution of the CHA license No. CHA/JMR/R/20/2003 from proprietorship to the appellants name.
11. The appeal is disposed of as indicated hereinabove.
(Pronounced in Court on 19.06.2014) (H.K. Thakur) (M.V. Ravindran) Member (Technical) Member (Judicial) cbb ??
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