Custom, Excise & Service Tax Tribunal
M/S Unique Logistic Solutions (I) Pvt. ... vs Commissioner Of Customs (Acc & Import), ... on 31 August, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II Appeal No. C/86572/15-Mum [Arising out of Order-in-Original No. S/8-92/2014-15(CBS)178 dated 24.04.2015 passed by the Commissioner of Customs (General), Mumbai]. For approval and signature: Honble Shri P.S. Pruthi, Member (Technical) Honble Shri 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? ====================================================== M/s Unique Logistic Solutions (I) Pvt. Ltd. Appellant Vs. Commissioner of Customs (ACC & Import), Mumbai Respondent Appearance: Mr. C. Subba Reddy, Advocate for Appellant Mr. D. K. Sinha, A. C. (AR) for Respondent CORAM: Honble Shri P.S. Pruthi, Member (Technical) Honble Shri Ramesh Nair, Member (Judicial) Date of Hearing: 31.08.2015 Date of Decision: 31.08.2015 ORDER NO. Per : Ramesh Nair
The present appeal is filed by the appellant against Order-in-Original No. S/8-92/2014-15(CBS)178 dated 24.04.2015 passed by the Commissioner of Customs (General), Mumbai, wherein the Commissioner has appointed an officer in the rank of Assistant Commissioner of Customs as an Inquiry Commissioner to inquire the case of Customs Broker M/s Unique Logistics Solutions (I) Pvt. Ltd.
2. On the preliminary query from the bench that whether appeal is maintainable under the impugned order, Shri C. Subba Reddy, Ld. Counsel for the appellant submits that the impugned order is an order passed by the Commissioner in the capacity of adjudicating authority under Customs Brokers Licensing Regulations, 2013. He submits that in terms of Sec. 129(A) of Customs Act, 1962, any person aggrieved by a decision or order passed by the Commissioner of Customs as an adjudicating authority may appeal to the Appellate Tribunal. The impugned order was passed by the Commissioner in the capacity of adjudicating authority, therefore the order is appealable before this Tribunal. He submits that the impugned order was passed under CBLR, 2013 and the said Regulation was made under Sec. 146 of Customs Act. Therefore, the order is appealable before this Tribunal. He submits that by the impugned order for initiation of inquiry, the Inquiry Officer was appointed whereas Regulation 20 of CBLR, 2013 provides 90 days for initiation of inquiry from the date of receipt of the offence report.
In the present case the offence case was investigated in 2011 and show cause notice proposing penalty on the appellant was issued on 12.06.2012. However, no offence report was forwarded to Ld. Commissioner. Therefore, no proceeding under Regulation of CBLR, 2013, would have been initiated by the Ld. Commissioner. In view of these facts, appellant has no option except to challenge the impugned order before this Tribunal and therefore, the appeal is maintainable.
3. On the other hand, Shri D. K. Sinha, Ld. A.C. (AR). appearing on the behalf of the Revenue strongly objected that appeal is not maintainable as no appealable order was passed. He submits that the Commissioner has issued a notice to the appellant intimating the initiation of inquiry against them and appointment of Inquiry Officer vide notice dated 24.04.2015. He submits that the order against which the appeal was preferred is not an adjudication order, but it is an administrative order for appointment of Inquiry Officer and Presenting Officer. The order was addressed to said officers and the copy was marked to the appellant. This clearly shows that this order is only for information purpose to the appellant; however the order was issued to the officers and not to the appellant. Therefore, an administrative order appointing the Inquiry Officer and the Presenting Officer cannot be appealed against by the appellant. Ld. A.R. placed the reliance on the following judgment:
Bose Enterprise & Another V/s. Union of India & Other WP No. 143 of 2010 GA No. 253 of 2011 dated 15th March, 2011 S.R. Sale & Co. V/s. Commissioner of Customs (General), Mumbai
- 2013 (295) ELT 653 (Bom.)
4. We have carefully considered the submissions made by both the sides. Today the matter is listed for maintainability. We find that the appellant has filed appeal against an order dated 24.04.2015 which is reproduced below:
From the above order, it is clearly observed that this order was issued only for appointment of the Inquiry Officer and the Presenting Officer for inquiry of a case against the appellant. It is also noticed that the order was issued to both the officers Shri V. G. Naik, Asst. Commr. of Customs and Shri Tilak Raj Kudwal, Superintendent and only a copy was marked to the appellant.
5. We observe that it is an order for appointment of officers and the appellant cannot be aggrieved by the administrative action of the Ld. Commissioner appointing the officers for inquiry. We also observe that a notice was issued to the appellant which is reproduced below:
From the above notice, it is seen that it is only a notice for holding an inquiry against the appellant. The appeal can be filed only against an adjudication order whereas this notice cannot be treated as adjudication order. Therefore, no appeal lies before this Tribunal against the said notice.
6. We have gone through the Regulation 20 of CBLR, 2013 which is reproduced below:
Regulation 20 (1) The 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 licence 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. From the above Regulation 20(1), it can be seen that under the said provision, a notice shall be issued by Commissioner of Customs. In the present case also it is the notice in terms of Regulation 20(1) was issued and there is no provision under the said Regulation for passing any appealable order. Therefore, the Commissioner strictly following the Regulation 20(1) issued notice dated 24.04.2015
7. In view of the above position we are the view that the notice dated 24.04.2015 being a notice for holding an inquiry cannot be appealed against. As regard order dated 24.04.2015 the same is only for the appointment of the Inquiry Officer and Presenting Officer and the same was meant for those officers only. Therefore, the same cannot be treated as the adjudication order and the appeal against which is not maintainable before this Tribunal. Under the CBLR, 2013, appeal can be filed only against the order of suspension or revocation of CBLR in terms of Sec. 146(2)(g) of Customs Act, 1962. Since in the present case, neither any order for suspension or revocation of the License was passed, the present appeal is not maintainable on this count also. We make further clear that the appellant has liberty to file appeal as and when any final order is passed after inquiry, therefore at this stage appeal is not maintainable against a notice for holding the inquiry. We, therefore, dismiss the appeal being non-maintainable.
(Operative part pronounce in Court)
(P.S. Pruthi) (Ramesh Nair)
Member (Technical) Member (Judicial)
Saifi
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Appeal No. C/86572/15-Mum