Custom, Excise & Service Tax Tribunal
Shri Sanjeev Kumar vs Cc (General), New Delhi on 16 March, 2016
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Principal Bench, New Delhi COURT NO. IV DATE OF HEARING : 16/03/2016. DATE OF DECISION : 16/03/2016. Customs Appeal No. 52175 of 2015 [Arising out of the Order-in-Original No. 47/NK/COMM (G)/ POLICY/2015 dated 28/03/2015 passed by The Commissioner of Customs (General), New Custom House, New Delhi.] For Approval and signature : Honble Ms. Archana Wadhwa, Member (Judicial) 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 would 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 : Department Authorities? Shri Sanjeev Kumar Appellant Versus CC (General), New Delhi Respondent
Appearance Shri Piyush Kumar, Advocate for the appellant.
Shri K. Poddar, Authorized Representative (DR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 51049/2016 Dated : 16/03/2016 Per. B. Ravichandran :-
The appellant is a Customs Broker having a licence to attend to customs clearance work in the ports. Certain enquiries were conducted by the officers of Customs Commissionerate, New Delhi with reference to import of Synthetic Diamond Powder in June 2011 by M/s New Faith Enterprises, New Delhi. Certain mis-declaration was revealed on enquiry. Proceedings were initiated against the appellants which resulted in the impugned order dated 28/3/2015 by the Commissioner of Customs (General), New Delhi. The learned Commissioner revoked the licence of the appellant and ordered forfeiture of the security deposit of Rs. 75,000/- furnished by the appellant.
2. The learned Counsel appearing on behalf of the appellant submitted that the proceedings against the appellants were for the failure to comply with the obligations under Regulation 13 of Custom House Agent Licencing Regulation 2004 [Regulations 11 and 17 of Customs Broker Licencing Regulation, 2013]. There are two specific instances of violations of the Licencing Regulations alleged against the appellant. One relating to import of Synthetic Diamond by M/s New Faith Enterprises, wherein the contents were declared in terms of 1 kg. is = 1000 carats instead of 1 kg. = 5,000 carats. The second violation alleged was with reference to bill of entry dated 17/1/12 for consignment of memory cards which were actually found to be RAMs.
2. Apart from strongly contesting the impugned order on merits the learned Counsel for appellant contended that the time limit prescribed under Regulation 20 of Customs Broker Licencing Regulations, 2013 have not been followed by the Original Authority and as such the order of revocation is illegal and without jurisdiction on this ground alone.
3. The learned AR reiterated the findings of the Original Authority and submitted that the appellant did not fulfill his obligations as a licensed broker in terms of Regulation 13 of CHALR 2004/Regulation 11 of CBLR 2013.
4. We have heard both the sides and examined the appeal records. We find here that a show cause notice was issued to the appellant on 25/7/2014. The said show cause notice narrates the details of enquiry relating to two instances of violations by the CHA which resulted in orders under Customs Act, namely, orders-in-original dated 27/2/2014 and 25/6/2013. The date of offence report received by the Original Authority is not known in the present case. Even considering these two orders passed under Customs Act, in which the appellant is one of the party and the present show cause notice having been issued on the same set of facts, we find the notice has been issued much after the time limit prescribed under Regulation 20 (1) of CBLR 2013.
5. The Enquiry Officer submitted his report on 07/01/2015, Regulation 20 (5) stipulates that the Enquiry Officer shall prepare a report of the enquiry and submit the same within a period of 90 days from the date of issue of show cause notice under sub-Regulation (1). We find enquiry report has been submitted well beyond the period prescribed under the Regulation. The Honble Madras High Court in A.M. Ahamed & Co. vs. CC (Imports), Chennai reported in 2014 (309) E.L.T. 433 (Mad.) and Sanco Trans Ltd. vs. Commr. of Cus., Sea Port/Imports, Chennai reported in 2015 (322) E.L.T. 170 (Mad.), held that a time period prescribed under the Customs Brokers Licencing Regulation 2013 are to be adhered to. Failure to follow the time limit statutorily prescribed will result in setting aside the order arising out of such proceedings. Considering the above decision of the Honble Madras High Court and also the decision of the Tribunal in M/s Atharva Global Logistics vs. CC, New Delhi reported in 2016 TIOL 157 CESTAT DEL. and in M/s ZEN Cargo Movers Pvt. Ltd. vs. CC, New Delhi reported in 2016 TIOL 524 CESTAT DEL, we find that the impugned order is liable to set aside on the ground of non-adherence of time line prescribed under the statutory regulations. Accordingly, the impugned order is set aside and the appeal is allowed.
(Operative part of the order pronounced in the open court.) (Archana Wadhwa) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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