Custom, Excise & Service Tax Tribunal
Pawan Kumar Tiwari vs Cc, New Delhi on 4 June, 2014
`IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No. 2, R.K. Puram, New Delhi 110 066. Date of Hearing : 4.6.2014 Appeal No. C/624/2009-Cus. [Arising out of Order-in-Appeal No. 18/POLICY/MKG/2009 dated 27.8.2009 passed by the Commissioner of Customs, New Delhi] Pawan Kumar Tiwari Appellants Vs. CC, New Delhi Respondent
Appearance:
Shri Manish Paliwal, Advocate - for the appellant Ms. Ranjana Jha, Jt. CDR - for the respondent Coram : Honble Mr. D.N. Panda, Judicial Member Honble Mr. R.K. Singh, Technical Member Final Order No. 52423/2014 Per D.N. Panda :
The appellant was heard on different occasions. Today argument of the ld. Counsel for the appellant summarily is as under:
(1) There is no dispute that the candidate was qualified under 1984 Regulations and eligible to get CHA licence under CHALR, 2004.
(2) The judgement of the Apex Court in the case of Sunil Kohli Vs. Union of India 2012 (285) ELT 481 (SC) allowed the candidates qualified under the 1984 Regulation as eligible candidates for grant of licence under CHALR, 2004. He submits so relying on para 5 of the Apex Court judgement.
(3) The department did not accept the application of the applicant for grant of licence under CHALR 2004.
(4) The appellant was before Honble High Court of Delhi in WP(C) 3338 of 2008 for consideration of his candidature for grant of license under CHALR, 2004.
(5) The Commissioner mis-conceived that M/s DHL Worldwide Express (I) Pvt. Ltd. was an applicant for grant of CHA licence when the appellant was an applicant and the department did not receive his application.
2. According to appellant, he possess requisite quantification and is eligible candidate for grant of licence under CHALR 2004 and following Apex Court judgement there cannot be denial of licence to him under CHALR, 2004. Further in view of the order of the Honble High Court of Delhi passed on 27.7.2009 in WP(C) 3338 of 2008, the authority below should have considered the application of the appellant. In counter affidavit (copy of which is available at page 76 of the appeal folder) department has conceived that the appellant has passed the appropriate examination.
3. Revenue submits that the appellant was never an applicant before the department for consideration under CHALR, 2004. Therefore the application made by DHL naming this person in their application failed to be considered in his favour in absence of an independent application by him made to the licensing Authority.
4. Heard both sides and perused the records.
5. The only dispute for consideration is whether the appellant had made application before the licensing Authority to consider his case in the light of the direction of the Honble High Court of Delhi WP(C) No. 3328/2008 disposed on 27.7.2009. Direction of the Honble Court in para-2 of the order reads as under :-
2. The directions given in the aforesaid order will equally apply to the present case. The respondent authorities will examine the application of the petitioner in terms of the said directions and will accordingly reject for accept the same. A speaking order will be passed within a period of four weeks and will be communicated to the petitioner.
6. Reading of para-1 of the order of Honble High Court does not deny the eligibility of the appellant for consideration under 2004 Regulation. But to consider his candidature there should have been his application on record. In para-2 of the judgement, Honble Court specifically directed the Commissioner that the said authority shall examine the application of the petitioner in terms of the direction in that order and shall accordingly reject or accept the same. When the application of the appellant was not available on record, ld. Authority below rightly passed an order dismissing the prayer of the appellant.
7. At this juncture, ld. Counsel for the appellant submits that the department has not allowed the appellant to make application for consideration. This averment is neither supported by any affidavit nor any copy of the application shown to us for our perusal. The appellant has also nowhere stated what was the date of his application submitted to the authority while filing writ petition. Therefore while appreciating the eligibility of the appellant we are unable to accommodate him at this stage who had not made any application to the licensing Authority. Calling the record from the Authority we found application of DHL who was applicant but not the appellant before the licensing Authority.
8. At this stage appellant says that if liberty is granted by Tribunal the appellant shall make an application for consideration by the authority. Tribunal does not have power to grant a jurisdiction to decide a issue which was not before the authority below. Therefore such contention of the appellant fails.
9. In view of the reasoning stated above, the appeal is dismissed.
(Dictated & pronounced in open Court) (D.N. Panda) Judicial Member (R.K. Singh) Technical Member RM 1