Custom, Excise & Service Tax Tribunal
M/S. Service Bureau vs C.C. New Delhi on 27 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Application No. C/Stay/50849/2015
Appeal No. C/51170/2015-CU(DB)
[Arising out of Order-in-Appeal No. 35/NK/Comm(G)/Policy/2015 dated 17.03.2015 by the Commissioner of Customs, Central Excise & Service Tax (Appeals), New Delhi].
For approval and signature:
Honble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Shri B. Ravichandran, Member (Technical)
1
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?
3
Whether Their Lordships wish to see the fair copy of the Order?
Seen
4
Whether Order is to be circulated to the Departmental authorities?
Yes
M/s. Service Bureau .Applicants
Vs.
C.C. New Delhi .Respondent
Appearance:
Shri Rajesh Kumar, Advocate for the Applicants Shri Suchitra Sharma, DR for the Respondent CORAM:
Hon'ble Ms. Archana Wadhwa, Member (Judicial) Hon'ble Shri B. Ravichandran, Member (Technical) Date of Hearing: 27.04.2016 FINAL ORDER NO. 51762-CU(DB) Per B. Ravichandran:
The present appeal is against order dated 17.03.2015 passed by Commissioner (A) of customs (Import And General) New Delhi revoking the license of the appellant and ordering forfeiture of security deposit of Rs.75,000/-.
2. The appellant is a custom house agent. In respect of one of the bills of entry dated 12.10.2011 filed for clearance of various consumer items imported by M/s. Sai Baba Traders, through custom house Mumbai, investigation conducted by the officers revealed that the said consignment contained undeclared high value items and there were several discrepancies in the description as well as quantity of goods imported. On conclusion of the investigation, proceedings were initiated against the importers and various other persons including the appellant under the provisions of Customs Act, 1962. The importer approached Settlement Commission and settled the case in terms of final order dated 18.10.2012 of Settlement Commission, Mumbai. The original authority adjudicated the goods against the remaining noticee and vide his order dated 15.04.2013 imposed a penalty of Rs.2 lakhs on the appellant.
3. Proceedings against the appellant with reference to provisions of Custom House Agent Licensing Regulation, 2004 were initiated by issue of show cause notice dated 22.07.2013. The show cause notices also appointed an enquiry officer to conduct enquiry in terms of Regulation 22 and submit his report. An enquiry report was submitted on 23.12.2014. The enquiry officer found the appellant to have violated various provisions of CHALR, 2004. Thereafter on considering the appellant representation the impugned order revoking the license of the appellant was issued on 17.03.2015. The appellant has filed an application for stay of operation of the said order along with regular appeal. When the stay application was listed on 11.01.2016 it was directed to be listed along with the appeal, as allowing the stay application would virtually amount to allowing the appeal. The merit of the main appeal itself is being taken up for decision.
4. The appellant challenged the impugned order both on merits and onnon adherence of prescribed time limits in the proceedings before the original authority. The Ld. Counsel for the appellant submitted that apart from not providing statement of persons involved in the case the enquiry officer did not give any finding regarding the examination of witnesses. The appellant were not given a chance to cross examine the persons who gave statement before the customs authorities. The replies furnished to the first enquiry officer was never taken on record and examined by the second enquiry officer. The show cause notice was issued on 22.07.2013, whereas the enquiry report was submitted on 23.12.2014 more than 16 months after the issue of notice. The impugned order was passed on 17.03.2015 after more than one year nine months of the show cause notice. The ld. Counsel for the appellant submitted that the time period prescribed under Regulation 22 has not been followed by the original authority. Relevance was placed on decision of Honble High court of Madras in the case of A.M. Ahamed & Co. Vs. CC (Imports), Chennai 2014 (309) ELT 433 (Mad). In the said order Honble High court also held that when the main importer has settled the matter in the settlement commission it will be unfair to impose extreme penalty of revocation of license on the CHA as a co-noticee.
5. The Ld. Counsel also argued on merit. He submitted that the penalty imposed under Customs Act, 1962 against the appellant was set aside by Commissioner (A) vide his order dated 20.05.2014. The reasons analysed in the said appellate order was applicable to the proceedings under CHALR 2004 also.
6. The ld. AR contested the submission of the appellant. He submitted that imported goods were not as per the declaration on quantity, description and value. The role of CHA has been brought out by the investigation conducted by the officers. Enquiry report was delayed because of change of officers.
7. We have heard both the sides and examined appeal records. We find that the present appeal will be effective on the preliminary ground of non maintaining of time limit in terms of Regulation 22 of CHALR, 2004 (Customs Brokers Licensing Regulation 2014 also contains similar time schedule). The decision of Honble High Court of Mumbai in A.M. Ahamed & Co. (Supra) is applicable to the facts of the present case on both the grounds of time limit as well as implication of settlement of case by the main importer. We find that Honble High court of Madras in a recent order in Saro International Pvt. System Vs. C.C. 2016 (334) ELT 289 (Mad) after detailed examination of various decided cases held that the time limit prescribed in CBLR 2013 are to be strictly followed by the authorities taking action under the said Regulation. We find that there is a substantial delay of more than a year in completion of the enquiry and also in issue of the present impugned order. The delay which is beyond the prescribed limits of CHALR / CBLR will make the impugned order legally unsustainable. The various decisions including the ones cited above are clear about legal position.
8. Accordingly the impugned order is set aside. Appeal is allowed.
[Operative part of the order pronounced in the open Court] (B. Ravichandran) (Archana Wadhwa) Member (Technical) Member (Judicial) Bhanu 5 C/51170/2015-CU(DB)