Custom, Excise & Service Tax Tribunal
Cc (Import & General), New Delhi vs Geo Cargo Express on 27 July, 2016
IN THE CUSPTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, NEW DELHI, PRINCIPAL BENCH NEW DELHI
Date of Hearing:25.07.2016
Date of Decision:27.07.2016
Customs Stay Application No.51972/2015 in
C/53196/2015
(Arising out of common Order-in-Original No.77/NK/Policy/2015 dated 15.05.2015 passed by the Commissioner of Customs, New Customs House, New Delhi)
CC (Import & General), New Delhi Appellants
Vs.
Geo Cargo Express Respondent
Customs Appeal No.53457/2015 Geo Cargo Express Appellant Vs. CC(Import & General) Respondent For Approval and Signature:
Honble Mr. Justice (Dr.) Satish Chandra, President Honble 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?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?4
Whether Order is to be circulated to the Departmental authorities?
Appearance:
Rep. by Shri Govind Dixit, DR for the Department.
Rep. by Shri Niranjan Bhasti, Prop. for the party.
Coram: Honble Mr. Justice (Dr.) Satish Chandra, President Honble Mr. B. Ravichandran, Member (Technical) Final Order No.52660-52661/2016 Dated:27/07/2016 B. Ravichandran:
There are two appeals, one by Revenue and another by M/s. Geo Cargo Express, against the same order-in-original dated 15.05.2015 of Commissioner of Customs (General), New Customs House, Airport, New Delhi. By the impugned order, ld. Commissioner ordered forfeiture of Rs.20,000/- from the security deposit furnished by M/s.Geo Cargo Express. The Revenue is in appeal with the prayer that the Commissioner should have revoked the licence issued to the party. On the other hand, M/s. Geo Cargo Express in their appeal prayed for setting aside the impugned order.
2. We have heard both the sides and examined the appeal records.
3. The brief facts of the case are that M/s.Geo Cargo Express were licensed to operate as Customs House Agent in terms of Customs House Agent Licensing Regulations, 2004. In connection with certain imports, the documentation of which was handled by the CHA, investigations were carried out by the officers of Mumbai Customs. On conclusion of the investigation, proceedings were initiated against the importers for non-payment of anti-dumping duty consequent upon mis-declaration of imported goods Sodium Tripoly Phosphate. The proceedings under Customs Act concluded by issue of order dated 30.08.2013. Separate proceedings were also initiated against Geo Cargo Express by issue of show cause notice dated 18.11.2013 proposing revocation of their CHA licence and also forfeiture of security deposit made by them. The said proceedings concluded by the impugned order, wherein the ld. Commissioner, who is licensing authority, held that violation by CHA cannot be considered to be so grave as to warrant revocation of their license. However, he held them liable to forfeit Rs.20,000/- from the security deposit furnished by them. As mentioned earlier, both the appeals are against this order.
4. Both the Revenue as well as M/s.Geo Cargo Express in their respective appeals made submissions in support of their prayer. However, before going into the actual merits of the case, we find that the impugned order and the various actions initiated before the conclusion of the proceedings in the impugned order, suffer from serious legal infirmities due to non-adherence of time limits prescribed under Customs House Agent Licensing Regulations, 2004/Customs Broker Licensing Regulations, 2013. From the appeal records as well as the date chart submitted by M/s. Geo Cargo Express, it is clear that the various proceedings/actions initiated by the Licensing Authority were in violation of the time limits prescribed under the above mentioned regulations.
5. The Commissioner of Customs (General), New Customs House , Mumbai prohibited the CHA from transaction of business in Mumbai Customs zone on 1.8.2012. The said order was communicated to the Commissioner of Customs, New Delhi, who is the Licensing Authority. The CHA license was suspended on 24.08.2012 and the said suspension was confirmed on 26.09.2012. The show cause notice under CHALR 2004 was issued on 18.11.2013. The Inquiry Officer submitted his report on 18.02.2015. The impugned order of forfeiture of Rs.20,000/- security deposit was issued on 15.05.2015.
6. From the above narration of chronology of events, it is clear that time limits prescribed under Regulation 22 of CHALR, 2004 have been violated. Regulation 22 (1) stipulates that, the Commissioner of Customs shall issue a notice in writing to the Customs House Agent within 90 days from the date of receipt of offence report. Here, the offence report can be considered as the report given by the Commissioner of Customs, Mumbai on 1.8.2012. The show cause notice in the present case has been issued on 18.11.2013 i.e. after more than a year and three months. Further, as per Regulation 22 (5), an enquiry officer shall prepare a report and submit within 90 days from the date of issue of notice under sub-regulation (1). In the present case, the inquiry report was submitted on 18.02.2015 i.e. after almost 14 months of the show cause notice.
7. It is now a well settled legal principle that the various time limits prescribed under the CHALR 2004 /CBLR, 2013 are mandatory in nature and are to be adhered to by the licensing authority. Non-adherence of the statutory time limit will render the action as without jurisdiction. The Honble Madras High Court in various cases upheld the said legal principles. Reference can be made to the recent decision in Sarro International Frieght Systems - 2016 (334) ELT 289 (Madras) . The Honble High Court held that the word, shall used in the regulation will indicate in mandatory nature of time limits. The Honble High Court concluded that if the notice was not issued in time, the same will be considered as without jurisdiction and not having statutory force. The ratio laid down by the Honble Madras High Court has been followed in various decisions of this Tribunal. A reference can be made to a recent decision in Ambika Enterprises - 2016-TIOL-1720 (CESTAT-DELHI). In this order, the Tribunal examined the various decided cases by the High Courts and the Tribunal and held that the time limits prescribed under the Regulation are to be mandatorily followed by the authorities. Failure to do so will make the proceedings invalid.
8. In view of the above discussion and analysis, we find that the impugned order cannot be sustained on this ground alone and accordingly, allow the appeal by M/s. Geo Cargo Express. The appeal filed by the Revenue is rejected. The stay application by the Revenue is also disposed of.
[Order pronounced on 27.07.2016.] ( Justice Dr. Satish Chandra) President ( B. Ravichandran ) Member (Technical) Ckp.
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