Custom, Excise & Service Tax Tribunal
Sss Sai Shipping Services P. Ltd vs Commissioner Of Customs (Gen), Mumbai on 27 April, 2015
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
C/89877/14
- Mum
(Arising out Order-in-Original No. 35/2014-15 dated 30.07.2014 passed by the Commissioner of Customs (Gen), Mumbai)
For approval and signature:
Honble Mr. M.V. Ravindran, Member (Judicial)
Honble Mr. P.S. Pruthi, Member (Technical)
1. Whether Press Reporters may be allowed to see No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the No CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy Seen
of the Order?
4. Whether Order is to be circulated to the Departmental Yes
authorities?
SSS Sai Shipping Services P. Ltd.
Appellant
Vs.
Commissioner of Customs (Gen), Mumbai
Respondent
Appearance:
Shri V.K. Singh, Consultant for the appellant Shri S.J. Sahu, AC (AR) for the respondent CORAM:
Honble Mr. M.V. Ravindran, Member (Judicial) Honble Mr. P.S. Pruthi, Member (Technical) Date of hearing : 27/04/2015 Date of decision : 27/04/2015 O R D E R No:..
Per: P.S. Pruthi:
The appellant, a customs broker, is in appeal against the impugned order dated 30.7.2014 passed by the Commissioner of Customs (Gen), Mumbai ordering continuing suspension of their customs broker licence and order dated 11.09.2014 continuing the suspension.
2. Investigations conducted by Customs revealed that one Shri Anil Chokhara, proprietor of M/s. Keshav Impex was running various companies and had allowed use of the IEC code of the companies by Shri Vijay Kothari and Shri Pawan Mehta who were effecting multiple foreign outward remittances of crores of rupees through imports against bills of entry. The statement of Shri Niklesh Kakkad, Director of M/s. Impress Clearing & Forwarding P. Ltd., a Custom Broker, revealed that the consignment for the various companies were cleared from customs using broker licence of the appellant. On the basis of investigations, the Chief Commissioner of Customs forwarded an offence report to the Commissioner of Customs on 24.07.2014 regarding the violation of Customs Broker Regulations by the customs brokers including the appellant. The Commissioner of Customs vide order dated 30.07.2014 suspended the licence of the appellant under Regulation 19(1) for violation of Regulations 10, 11(a), 11(d) and 11(n) of the Customs Broker Licence Regulations, 2013 (CBLR).
3. We have perused the records and considered the submissions of both sides.
4. It is seen that the suspension of licence is in relation to imports which had taken place during the period September 2011 to May 2013. The licence was suspended under Regulation 19(1) on 30.07.2014. Regulation 19(1) provides for suspension of licence where immediate action is necessary and an enquiry is contemplated against the CB. We agree with the reliance placed by the ld. consultant on the case of CC vs. National Shipping Agency 2008 (226) ELT 46 (Bom.) in which the Hon'ble High Court held that action under Regulation 19(1) is an emergent power to be used in those cases which requires immediate suspension. In this case too, as the imports had taken place much earlier, there appears to be no ground for immediate action of suspension of licence. More so, when the CB has been in the business for 34 years and the suspension of licence jeopardises the livelihood of his employees. It is also stated in the appeal that the main investigation under the Customs Act in respect of the disputed consignment is still pending. Therefore, we are of the view that the suspension of licence many months after the imports is not warranted.
5. We also note that under Regulation 21, the Commissioner of Customs is required to issue a notice in writing to the Customs Broker within a period of 90 days from the date of receipt of the offence report stating the grounds on which it is proposed to revoke the licence. It is on record that the enquiry was ordered on 18.11.2014 i.e. after a period exceeding 90 days from the date of receipt of offence report which was received on 26.07.2014 by the Commissioner. In this view of the matter, we find that there is no justification in continuing the suspension. It is not the argument of Revenue that the time limit prescribed in Regulation 21 is only directory and not mandatory. Therefore, the proceedings under CBLR for suspension are vitiated. This view is supported by the Tribunal decision in the case of Atharva Global Logistics vs. CC (I&G) New Delhi 2015 (315) ELT 432 (Tri-Del). It is also held by the Hon'ble High Court of Madras in the case of CC (Seaport Import), Chennai vs. CESTAT, Chennai 2014 (310) ELT 673 (Mad.) that a joint reading of erstwhile Regulations 20 & 22 (now Regulations 19 & 20) leads to the inference that the order of suspension passed under 20(2) ibid and its continuation under Regulation 20(3) ibid is only an interim measure and the authority has to take further steps i.e. suspend the licence permanently or revoke the licence under Regulation 22 within the time limit prescribed. Otherwise the order of suspension stopping the right of a person to carry on its business cannot continue.
6. We find that time limits are prescribed in the Regulations which are formed under Section 146 of the Customs Act, and these time limits are statutory in nature.
7. In view of the above, we hold that there is no justification for suspension of the License. The order dated 30.7.2014 suspending the licence is set aside.
8. The order dated 30.07.2014 being set aside, the order dated 11.09.2014 continuing the suspension also gets set aside.
9. Appeal allowed.
(Operative part pronounced in Court) (M.V. Ravindran) (P.S. Pruthi) Member (Judicial) Member (Technical) //SR 5