Custom, Excise & Service Tax Tribunal
M/S P.I. Logistics (India) Pvt. Ltd vs Cc (I&G), New Delhi on 28 April, 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 : 28/04/2016. DATE OF DECISION : 28/04/2016. Customs Appeal No. 50035 of 2016 [Arising out of the Order-in-Original No. 117/SM/Policy/2015 dated 06/10/2015 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? M/s P.I. Logistics (India) Pvt. Ltd. Appellant Versus CC (I&G), New Delhi Respondent
Appearance S/Shri G.K. Sarkar and Prashant Srivastava, Advocates for the appellant.
Shri Rajeev Gupta, Authorized Representative (Jt. CDR) for the Respondent.
CORAM : Honble Ms. Archana Wadhwa, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 51697/2016 Dated : 28/04/2016 Per. B. Ravichandran :-
The appellant is a Custom House Agent. The present appeal is against order dated 06/10/2015 passed by Commissioner of Customs (General), New Delhi under the licence of the appellant.
2. The brief facts of the case are that the appellant as a Custom House Agent filed various bills of entry for clearance of imported cargo by M/s Andani Corp., New Delhi. Investigations conducted by officers of Customs revealed that the imported products, namely deodorants, perfumes did not carry proper MRP labels resulting in short payment of Customs Duty at the time of their clearances. Detailed investigations were conducted and proceedings under Customs Act, 1962 were initiated against the importer and the appellant. Separately, by show cause notice dated 16/4/2005 proceedings were initiated against the appellant under the provisions of Customs Brokers Licencing Regulation (CBLR), 2013 for revoking their licence for various violations of the said Regulations. The present impugned order was issued in conclusion of the said proceedings.
2. The learned Counsel for the appellant mainly submitted that :-
(i) the appellant have not violated any provisions of CBLR, 2013. This is clearly evident as per the enquiry report dated 30/06/2015 submitted by the Deputy Commissioner as per the directions of the Commissioner in the show cause notice dated 16/4/2015. The Inquiry Officer has examined in detail all the 4 charges leveled against the appellant and came to the categorical conclusion that none of them were proved for any further action against the appellant ;
(ii) the impugned order was passed in clear violation of principles of natural justice as the Original Authority differed with the Inquiry Officer on two of the charges and proceeded to revoke the licence of the appellant. The appellants were not given notice on the points of difference and no opportunity was given to them to defend their case;
(iii) the impugned order, which should have been passed within 90 days of the enquiry report was passed beyond that period as the enquiry report was dated 30/06/2015 and the impugned order was passed on 06/10/2015. As such, the order-in-original which was not passed within the time limit as prescribed by the CBLR, 2013 is without jurisdiction.
3. The learned AR opposed the submissions of the appellant. It is submitted that a show cause notice has already been issued to the appellant elaborating all the charges against them. The enquiry report submitted by the Inquiry Officers in terms of the show cause notice was also given to the appellant. They were heard in person also by the Original Authority before passing the impugned order. Hence, the learned AR submitted that there is no violation of any principles of natural justice. Further, regarding the time limit, he submitted that the Original Authority recorded that the enquiry report was received from the Deputy Commissioner on 10/07/2015 and as such the impugned order has been passed within the period of 90 days.
4. We have heard both the sides and examined the appeal records. We find that out of 4 charges leveled against the appellant the Original Authority agreed with the enquiry report on first two charges and held the appellant has not violated any provisions as alleged. The present appeal deals with only the revocation of licence on the view of the Original Authority in disagreement with the enquiry report regarding the 3rd and 4th charge. These two allegations are relating to the provisions of Regulation 11 (d) and 11 (e) of CBLR, 2013. They deal with advice to the client to comply with the provisions of Customs Act and exercise of due diligence to ascertain the correctness of any information with reference to work relating to clearance of cargo. The enquiry report analyzed various evidences with reference to these allegations and found that they are not proved. The enquiry report in full was communicated to the appellant by the Assistant Commissioner on 20/07/2015. A perusal of the said communication indicates that it enclosed the enquiry report and requested the appellant to submit their representation, if any, within 30 days in terms of Regulation 20 (6) of CBLR, 2013. There is no indication or reference to any possible difference of opinion with reference to the enquiry report as entertained by the Original Authority. In other words, the enquiry report which exonerated the appellant totally, was communicated to the appellant for representation. Apparently, the appellant gave a reply reiterating their defence and supporting the findings of the Inquiry Officer. There is nothing to indicate that the appellant has been put to notice on the disagreement of the Original Authority with any part of the enquiry report. Such being the case, it is clear that the present impugned order issued without indicating the disagreement with the enquiry report and getting the response of the appellant, is in clear violation of principles of natural justice. In this connection, a reference can be made to the Honble Bombay High Court decision in Commissioner of Customs (General) vs. Dominic and Co. reported as 2015 (319) E.L.T. 74 (Bom.). The Honble Bombay High Court held as :-
Since the Commissioner expressed his disagreement with the findings recorded by the Inquiry Officer in their entirety, the Regulations though permit him to hold a de novo inquiry, that could be only after due notice to the respondent in that behalf. In other words, a notice indicating the disagreement with the findings of the Inquiry Officer, the extent of such disagreement and the prima facie reasons for such disagreement, ought to be communicated and that notice should be served on the agent like the respondent. After such an agent responds to the notice and if the Commissioner is further satisfied that the explanation does not deserve acceptance, he is free to hold a de novo inquiry and into all charges. This is not merely a matter of procedure but one of substance. Even the full bench decision of this Court in the case of Delta Logistics vs. Union of India, reported in 2012 (286) E.L.T. 517 lays down such a principle.
The said decision has been followed by the Tribunal in the other cases also.
5. In view of the above legal position, we find the impugned order cannot be sustained on this ground alone. As such, we set aside the impugned order and allow the appeal.
(Dictated and pronounced in open court) (Archana Wadhwa) Member (Judicial) (B. Ravichandran) Member (Technical) PK ??
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