Custom, Excise & Service Tax Tribunal
M/S. Harish Sethi vs Commissioner Of Customs on 17 August, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Customs Appeal No. 51801 of 2015
[Arising out of Order-In-Original No. 25/NK/PROHIBITION /POLICY/2015 dated 26.02.2015 passed by Commissioner of Customs (General), New Delhi ]
For approval and signature:
Hon'ble Mr S K Mohanty, Member (Judicial)
Hon'ble Mr. V Padmanabhan, Member (Technical)
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Whether Press Reporters may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?
No
2
Whether it should be released under Rule 27 of the CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?
Yes
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Whether Their Lordships wish to see the fair copy of the Order?
Seen
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Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Harish Sethi Appellants
Vs.
Commissioner of Customs Respondent
(General) New Delhi Appearance:
Shri Praveen Kumar Singh, Advocate for the Appellants Dr. S K Sheoran, DR for the Respondent CORAM:
Hon'ble Mr S K Mohanty, Member (Judicial) Hon'ble Mr. V Padmanabhan, Member (Technical) Date of Hearing/ Decision: 17.08.2016 FINAL ORDER NO . 53559 /2016 Per V Padmanabhan( for the Bench):
The appeal is directed against the order dated 26.2.15 passed by Commissioner of Customs (General), IGI Air port, New Delhi. The appellant is holder of CHA license and vide the impugned order, the Commissioner withdraw the permission granted to him under Regulation 7(2) of CBLR, 2013 and prohibited the appellant to continue work as Customs broker at Delhi Customs. It is also pertinent to record that the appellant has been issued the license to operate as Customs broker by the Commissioner of Customs, Hyderabad and had been permitted to operate in Delhi Customs.
2. The action to prohibit the operation of the Customs broker was a consequence of the inquiry initiated by the Director of Revenue Intelligence against some unscrupulous importer who had attempted to export by overvaluing the goods and claiming undue export incentives. DRI on prima facie investigation found involvement of the appellant in fraudulent export and the same was informed to the Commissioner of Customs, Delhi vide DRI letter dated 16.2.2015.
3. The impugned order has been challenged on the ground that it has been passed without following the principles of natural justice. Inasmuch as the appellant has not been issued any show cause notice nor have they been given any opportunity to putforth their view before passing the said order. The CBLR provides the detailed procedure for suspension / revocation of license issued to the Customs broker. No such formality has been followed in their case. They have also submitted that the licensing authority of Customs Broker License in their case was Commissioner of Customs, Hyderabad. They have also cited following case laws in their support and to argue that prohibition order cannot be passed against them without following the principle of natural justice even if the prohibition is considered as an administrative order.
1. A M Ahamed and Co. vs. CC, Tuticorin [2013 (288) ELT 497 (Mad)];
2. Shipping & Clearing (Agents) Pvt. Ltd. vs. UOI [2014 (308) ELT 45 (Cal)];
3. Logic Transware India Pvt. Ltd. vs. CC [2014 (302) ELT 228 (Del)];
4. International Cargo Services vs. UOI [2006 (193) ELT 546 (Del)]; and
5. S R Sale & Co. vs. UOI [2013 (296) ELT (Bom)].
4. We have heard Shri Praveen Kumar Singh, learned advocate appearing for the appellant as well as Dr S K Sheoran, learned DR appearing for the Revenue. While the learned Counsel reiterated the submissions made in their appeal, learned DR emphasized the point, inasmuch as the impugned order is an administrative order passed by the Commissioner, in his capacity as an adjudicating authority, no appeal can be filed against such an order and hence the appeal is not maintainable.
5. We have heard both the sides and have gone through the records. We find that the Customs Broker has been issued the license under various regulations of CBLR by Commissioner (Customs), Hyderabad. The Commissioner (Customs), Delhi, had in turn, permitted the appellant to operate in Delhi. Through the impugned order, such permission was withdrawn and appellant was prohibited from working in any of the Customs Areas in New Delhi. From the impugned order, we find that this step has been taken in the light of the investigation being undertaken by the Director of Revenue Intelligence against various unscrupulous exporters. Some of these export consignments were handled by the appellant. We have also perused various case law cited by the appellant in their appeal. In case of A M Ahamed & Co.(supra) passed by Honble High Court of Madras, it has been laid down, in the context of prohibition order against the CHA, that even an administrative order affecting the life of party can be passed only after following the principles of natural justice. In the case of Shipping and Clearing (Agents) Pvt. Ltd.(supra), the view taken by the Honble High Court of Calcutta in on the same lines. The other case law cited also emphasis audi alteram partem which means that any person likely to be adversely effected by the action of authorities should be given notice to show cause and granted reasonable opportunity of being heard, before passing orders.
6. In the light of the above decisions of various High Courts, we are of the opinion that even though the relevant Regulation No. 23 of CBLR, 2013 does not provide for issuance of show cause notice, to satisfy the principle of natural justice, the same needs to be provided. Accordingly, we set aside the impugned order and remand the matter to the adjudicating authority to re-adjudge the matter after putting the appellant on notice of explaining the reasons for the action contemplated and pass a fresh order after giving them an effective hearing.
7. The impugned order is set aside. Appeal allowed by way of remand.
(pronounced in the open court )
( S K Mohanty ) Member(Judicial)
( V. Padmanabhan )
Member(Technical)
ss
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