Custom, Excise & Service Tax Tribunal
M/S Rakesh Sharma vs Cc, New Delhi (I&G) on 3 August, 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. I DATE OF HEARING : 27/07/2016. DATE OF DECISION : 03/08/2016. Customs Appeal No. 54144 of 2015 [Arising out of the Order-in-Original No. 106/BBG/Policy/2015 dated 05/08/2015 passed by The Commissioner of Customs (General), New Delhi.] For Approval and signature : Honble Shri 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 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? M/s Rakesh Sharma Appellant Versus CC, New Delhi (I&G) Respondent
Appearance Shri Piyush Kumar, Advocate for the appellant.
Shri K. Poddar, Authorized Representative (DR) for the Respondent.
CORAM : Honble Shri Justice Dr. Satish Chandra, President Honble Shri B. Ravichandran, Member (Technical) Final Order No. 52757/2016 Dated : 03/08/2016 Per. B. Ravichandran :-
The appellant is a custom house agent whose license has been revoked by the impugned order passed by Commissioner of Customs (General), New Custom House, New Delhi. The brief facts of the case are that the officers of DRI conducted certain verification at Mumbai Customs regarding export cargo with misdeclared items during June, 2014. The appellants were alleged to have involved in the attempt for irregular export of misdeclared cargo with a view to facilitate ineligible export incentive. The officers of DRI, Mumbai sent the intimation to Commissioner of Customs (General), Mumbai on 30/9/14 regarding the said mis-declaration and investigation. The Commissioner of Customs (General), Mumbai issued an order of prohibition dated 5/11/14 against the appellant prohibiting them from operating in Customs Zone, Mumbai. Intimation was sent to Commissioner of Customs (General), New Delhi who is the Licensing Authority for the appellant. The said intimation was received by the Commissioner of Customs, New Delhi on 21/11/14. Subsequently a show cause notice was issued on 05/2/15 to the appellant proposing revocation of their license and forfeiture of security deposit. The enquiry ordered was completed and the report was submitted on 08/5/15. Thereafter the impugned order was passed revoking the license of the appellant and ordering forfeiture of security deposit of Rs. 75,000/-. A penalty of Rs. 50,000/- was also imposed on the appellant under Regulation 22 of CBLR, 2013.
2. The learned Counsel for the appellant strongly contested the impugned order stating that they have not contravened any provisions of CBLR, 2013. The said order was passed based on the enquiry report which was prepared ex-parte. The investigation by the DRI under the Customs Act, 1962 was completed and a show cause notice was issued on 01/12/14. The appellants were not issued with any notice indicating, thereby, that they have not committed any violation of the provisions of Customs Act, 1962. Regarding revocation of license, the learned Counsel submitted that apart from the lack of merit in the impugned order, the proceedings against the appellant where in violation of the statutory time limits, more specifically as prescribed under Regulation 20 (5) of CBLR, 2013. The enquiry report was not prepared and submitted within a period of 90 days from the date of issue of notice to the appellant. On this ground alone, the proceedings are to be held invalid.
3. The learned AR reiterated the findings of the lower Authority and stated the overall time period of 270 days i.e. from the date of receipt of offence report to the date of issue of order by the Licensing Authority has been complied with.
4. We have heard both the sides and examined the appeal records. Since, the appellant raised the question of validity of the proceedings in terms of time limits prescribed under Regulation 20 of CBLR we have examined the said issue first. The admitted facts are that Regulation 20 prescribes three separate time limits of 90 days each for each stage of proceedings against a custom broker. In the present case the appellant plead that the offence report of DRI, Mumbai was received by Commissioner of Customs (General), Mumbai on 30/9/14 based on the same he had issued a prohibition order on 05/11/14. Hence, the learned Counsel pleaded that the time limit for issue of show cause notice will start from 30/9/14. We are unable to agree with the said proposition. Regulation 20 (1) stipulates that show cause notice shall be issued within a period of 90 days from the date of receipt of an offence report. Such notice is for revocation of license or imposing penalty. The said notice can be issued only by Licensing Authority, who is competent to initiate such action. In the present case, the Licensing Authority is the Commissioner of Customs (General), New Delhi. Hence, it is clear that the date of receipt of offence report by his office should be considered. The learned AR submitted documentary evidence to show that Commissioner of Customs (General), New Delhi received intimation regarding prohibition by Commissioner of Customs (General), Mumbai only on 21/11/14. There is nothing on record to show that any offence report has been received by the Licensing Authority prior to that date. As such, we find the show cause notice dated 05/2/14 has been issued within 90 days. However, the enquiry report in terms of Regulation 20 (5) shall be prepared and submitted within 90 days form the date of issue of such show cause notice. In the present case admittedly the enquiry report was submitted on 08/5/15 which is beyond 90 days prescribed under the Regulation.
5. We note that it is a well settled legal position that when statutory time limits are prescribed under the law the same has to be strictly adhered to. The legal position in respect of time limits prescribed under Regulation 20 has been repeatedly held to be mandatory in nature. Failure to adhere the same will make the proceedings invalid. Reference can be made to the Honble Delhi High Court decision in Indair Carrier Pvt. Ltd. vs. CC (General) and anr. Reported in 2016 TIOL 1111 HC DEL CUS which is again reiterated by the High Court in their recent decision dated 20/7/2016 in Overseas Air Cargo Services 2016 TIOL 1531 HC DEL CUS. The said legal position has been affirmed by the Honble Madras High Court in various decisions. Reference can be made to the latest decision of Honble Madras High Court in Serro International Freight System 2016 334 E.L.T. 0289 (Mad.). The Tribunal has held in various cases on similar lines. Reference can be made to the recent decision in Ambika Enterprises 2016 TIOL 1720 CESTAT DEL. and final order No. 52107 of 2016 dated 08/6/2016 in Vinod Tomar vs. CC (I&G), New Delhi.
6. In view of the finding that the enquiry report has not been submitted within 90 days, we are not examining the merit of the case. As such, the impugned order is set aside. The appeal is allowed.
(Order pronounced in the open court on 03/08/2016.) (Justice Dr. Satish Chandra) President (B. Ravichandran) Member (Technical) PK ??
??
??
??
6