Custom, Excise & Service Tax Tribunal
M/S. Fidesta Logistics Pvt. Ltd vs Commissioner Of Customs (General), ... on 31 August, 2015
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. Appeal No. C/85825/2015-Mum (Arising out of Order-in-Original No. F.No.S/6-332(A)/81 CBS/879 dt. 24.07.2014 passed by the Commissioner of Customs (General), Mumbai ) For approval and signature: Honble Mr. P.S.Pruthi, Member (Technical) Honble Mr. Ramesh Nair, Member (Judicial) ============================================================
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M/s. Fidesta Logistics Pvt. Ltd.
:
Appellant
VS
Commissioner of Customs (General), Mumbai
:
Respondent
Appearance
Shri A.K. Prabhakar, Advocate for Appellant
Shri S.J. Sahu, Assistant Commissioner (A.R) for respondent
CORAM:
Mr. P.S.Pruthi, Member (Technical)
Mr. Ramesh Nair, Member (Judicial)
Date of hearing : 31/08/2015
Date of pronouncement : 10/11/2015
ORDER NO.
Per : P.S. Pruthi
The appellant is a company who held Customs Broker License No. 11/461 issued under Custom House Agent Licensing Regulations (CHALR) 2004 now CBLR 2013. The License was valid till 31.12.2013. Their employee Mrs. Rincku Nagda, a Regulation 8 qualified employee, based on which the Custom Brokering (CB) License was operational, resigned on 6.6.2012. As the company could not employ another Regulation 8/9 qualified person for some time,the Commissioner made the license inoperative on 22.1.2013. As the CB license expired on 31.12.2013 and the company could appoint another qualified Regulation 9 person and informed the Customs on 4.3.2014 only, the Commissioner vide impugned order dt. 24.7.2014 rejected the request of the appellant to renew the License. It was held by the Commissioner that the appointment of the new person was done on 1.3.2014 when the License was nonest. Commissioner also held that no case was made out for renewal of license under Regulation 9(2) of CBLR 2013, because the performance of the licensee was not satisfactory on account of non operational business.
2. The Ld. Counsel appearing for the appellant stated that the ground for making the license inoperative was that the employee had only resigned and not retired and renewal of license under Regulation 15(2) is made only on the death or retirement of a person referred to in Regulation 5(2) ( b ) or 5(2) (c). He submitted that the word retirement includes the word resign. He relied on the case of Commissioner of Customs (General) Mumbai Vs. Gannon Dunkerley & Co. Ltd. 2009 (236) ELT 652 (Bom.) which held that the resignation of only employee i.e. G Card Holder Would not amount to change in constitution of the firm. Further submitted that under CBLR 2013, the Regulation 13(2) allowsa two years period to the company from the date of demise/retirement to appoint any other person but in their case the period of two years had not expired and the license was inoperative even before the expiry of license i.e. 31.12.2013. He also submitted that the company was non-operational for lack of business relating to mining activity which was banned by the Supreme Court.
3. The Ld. AR reiterated the findings of the Commissioner. He relied on the Mumbai High Court judgment in the case of S.R. Sale & Co. Vs. Commissioner of Customs (General), Mumbai 2013 (295) E.L.T. 653 (Bom.) in which it was held that appeal is not maintainable against an order of prohibition under Regulation 21 and (now Regulation 23) appeal is maintainable to the Tribunal only against suspension or revocation of the license under Regulation 20.
4. We have carefully considered the contentions of both sides. As the AR has questioned the maintainability of the appeal, we may first take up this issue. We find that Section 146 (2) of the Customs Act provides that the Board may make Regulations in respect of Custom House Agent and in particular Section 146(2) (f) states that such regulations made provide for appeals against an order of suspension or revocation. The regulations are a self contained code for the operation of Custom House Agents. In the present case, the appeal relates to renewal of a license which is a administrative matter dealt with by the Commissioner. This case does not fall under the Regulation 9(2) for renewal of license because the license was no more valid after 31.12.2013.
If the renewal of a license could be made a matter of appeal before the Tribunal then even the grant of license which is a administrative function could well become a matter against which appeal would lie to the Tribunal. Extending this reasoning further, even the conduct of examinations for grant of a CHA License could then be a subject matter of appeal before the Tribunal. Certainly the farmers of the Statute did not envisage this. Therefore, the statute under Section 146(2) (f) limits the scope of appeals only in case of suspension or revocation of a license. This has been held by the Honble High Court of Bombay in the case of S.R. Sale & Co. (supra) in which it was held that-
the entire subject matter of the licensing of CHAs which commences from invitation of applications and covers qualifications of eligibility, the holding of examinations, award of licences, obligations of CHAs and disciplinary control are governed by the regulations. Section 146(2) contemplates that the Regulations are intended to fulfill the purpose of carrying out of the provisions of the section. That the Regulations may also govern the remedies which are available to a CHA against an order passed in the disciplinary jurisdiction is made abundantly clear by clause (f) of Section 146(2). Section 146(2)(f) clarifies by way of illustration that the Regulations can govern the appeals, if any, against orders of suspension or revocation. If recourse to the general power of an appeal under Section 129A was intended by Parliament to be available in disciplinary matters involving CHAs, there was no necessity of including a provision such as that which is contained in Section 146(2)(f). The provisions of Section 129A have to be harmoniously construed with those of Section 146. There is no question, in our view, of there being any inconsistency between the two statutory provisions. Similarly there is no repugnancy between the provisions of Regulation 22(8) and Section 129A. Section 146 operates in a field different from Section 129A. Section 146 governs the licensing of CHAs and contemplates the making of regulations governing all aspects of the licensing of CHAs including disciplinary control. Remedies against orders passed in the disciplinary jurisdiction are to be provided in the regulations. The Regulations constitute a self-contained code relating to the licensing of CHAs. The Regulations provide for disciplinary control over CHAs and have provided an appellate remedy against orders of revocation or suspension. An order of prohibition under Regulation 21, preventing a CHA from operating within one or more sections of a customs station is not subject to an appeal under the Regulations. The subordinate legislation has considered that such an order does not possess the consequence of either a revocation of a licence or for that matter, the suspension of a licence pending enquiry since such an order prohibits a CHA from operating in one or more sections of a customs station. The wisdom of the delegate of the legislature in not providing an appeal in such a case does not fall for re-evaluation by the Court. It is trite law that there is no inherent right of appeal. An appeal is a creation of a statute or, as in the present case, the creation of a statutory provision (Section 146) read together with the regulations. A CHA is, however, not without remedy against an order of prohibition which is amenable to the jurisdiction of the High Court under Article 226 of the Constitution. 4.1 The reliance placed by the Ld. Counsel in the case of Gannon Dunkerley & Co. Ltd. is not acceptable as that case was on a different footing. It related to operation of the license when the qualified person of the Customs Broker was available. The case did not relate to a license which had already expired as in the present case. In the present case the appellant had failed to appoint a Regulation 8/9 qualified employee before the expiry of the license. As the license had already expired it did not remain an issue of being non operative, it was a matter of license becoming nonest as held by the Commissioner. Therefore we do not find any fault in the order of the Commissioner. In any case the judgment in the case of S.R. Sale & Co. is a later judgment of the Honble High Court by which we have to abide. Further, the Delhi High Court judgment in the case of Premier Shipping Agencies Vs Commissioner of Customs [2015 (315) E.L.T. 27 (Del.) is based on different facts. There the issue was of prohibition under Regulation 21(23) which has a bearing on the operability of a License. But he present case deals with renewal of a license which is non-est. Moreover the said judgment cannot be given precedence over the judgment of the jurisdictional High Court in the case of S.R. Sale & Co.
5. In view of the above, we find that the appeal is not maintainable.
(Pronounced in court on 10/11/2015) (Ramesh Nair) Member (Judicial) (P.S.Pruthi) Member (Technical) SM.
7Appeal No. C/85825/2015-Mum