Custom, Excise & Service Tax Tribunal
Durga Clearing Private Limited vs Commissioner Of Customs(General), ... on 8 July, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/85343/14 [Arising out of Order No.45/2013 dtd. 13/1/2014 passed by the Commissioner of Customs (General), New Customs House, Mumbai-I] For approval and signature: Honble Mr. P.S. Pruthi, Member(Technical) Honble Mr Ramesh Nair, Member(Judicial) =======================================================
1. Whether Press Reporters may be allowed to see : No
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 : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
=======================================================
Durga Clearing Private Limited.
:
Appellants
VS
Commissioner of Customs(General), NCH, Mumbai
:
Respondent
Appearance
Shri Prasad Paranjape, Advocate for the Appellants
Shri. S.J. Sahu, Asstt. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. P.S. Pruthi, Member (Technical)
Honble Mr. Ramesh Nair, Member (Judicial)
Date of hearing: 8/7/2015
Date of decision: 8/7/2015
ORDER NO.
Per : Ramesh Nair
This appeal is directed against order Order No.45/2013 dtd. 13/1/2014 passed by the Commissioner of Customs (General), New Customs House, Mumbai-I, wherein Ld. Commissioner by exercising power conferred under Provisions of Regulations 19(2) of CBLR, 2013 ordered that the suspension of CB Licence No. 11/962 of the appellant ordered vide order No. 43/2013 dated 19/12/2013 shall be continued pending inquiry proceedings under regulation 20 of CBLR, 2013.
2. Shri. Prasad Paranjape, Ld. Counsel for the appellant submits that DRI issued preliminary offence report on 13/6/2013 which was followed by detailed report vide letter F. NO. DRI/MZU/F/ 16/2012-13 dated 12/12/2013 thereafter the respondent suspended licence on 19/12/2013 subsequently by the impugned order suspension was ordered to be continued on 13/1/2014. It is his submission that after lapse of long period of more than two years even enquiry proceedings has not been initiated and the suspension of the licence continued since long period of 18 months. It is his submission that as per the Customs Broker Licence Regulation, 2013 statutory time period has been provided for completion of investigation and the total period for investigation provided is 9 months. In the present case even after 18 months of suspension of licence, inquiry has not been initiated therefore the suspension of licence required to be revoked and the appellant shall be allowed to perform as a CHA. He referred to the Board Circular 9/2010 CUS dated 8/4/2010 wherein Board has clarified that overall period of 9 months have been prescribed from the date of receipt of offence report for completion of the inquiry and taking decision by the licencing authority. Since not only 9 months, even more than 18 months have been passed and no inquiry was conducted. For the failure on the part of the licencing authority suspension of licence should not be continued. In support, he placed reliance on following judgments:.
(a) Bombay Shipping Agency Vs. CC(General), Mumbai[2014 (299) ELT 352(Tri-Mumbai)
(b) Vinod Tomar Vs. C.C. New Delhi [2011(272) ELT 564(Tri- Del)]
(c) Babaji Shivram Clearing & Carriers Pvt. Ltd. Vs. UOI[2011(269) ELT 222(Bom.)]
(d) Tass Clearing Serivces Pvt. Ltd. Vs. CC, Hyderabad-II[2007(219) ELT 522(Tri Bang)]
(e) CC(General) Mumbai Vs. East and West Shipping Agency[2007(218) ELT 360(Bom)].
He submits that, view of the above judgments of the Tribunal as well as Honble Bombay High Court it was consistently held that suspension should not be continued if the inquiry proceedings are not completed within prescribed time limit of 9 months.
3. On the other hand, Shri. S.J. Sahu Ld. Asstt. Commissioner, (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order and submits that some time may be given to the Revenue for completion of enquiry proceedings. He placed reliance on the judgment of Honble Bombay High Court in the case of M. Dharamdas & Co. Vs. Commissioner of Customs (General)[2015(316) ELT 600(Bom.)]
4. We have carefully considered the submissions made by both sides.
5. The appellants licence has been suspended since 19/12/2013 and the same continued to remain under suspension by the impugned order dated 13/1/2014. CBLR, 2013 itself has prescribed an over all time limit of 9 months to complete the proceedings against the CHA right from the initiation of the proceedings to its final disposal. None of the time limit has been adhered by custom authority in this case. In these circumstances it will be in the interest of equity and justice to set aside the suspension and allow the appellant to function as a CHA pending completion of inquiry by the custom authority. Accordingly we revoke suspension order 43/2013 dated 19/12/2013 and 45/2013 dated 13/1/2014. However, Custom Authority are at liberty to continue inquiry proceedings as envisaged under CBLR, 2013. Order to be given dasti.
(Operative part pronounced in court) P.S. Pruthi Member (Technical) Ramesh Nair Member (Judicial) sk 4