Custom, Excise & Service Tax Tribunal
Bhalinder Singh Mann vs Commissioner Of Customs (Gen) on 6 April, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX
APPELLATE TRIBUNAL, NEW DELHI
PRINCIPAL BENCH, COURT NO. IV
Customs Appeal No. 52457 of 2015
[Arising out of Order-In-Original No. 63/NK/Policy/2015 dated 24.4.2015 passed by Commissioner of Customs (General) New Delhi]
For approval and signature:
Hon'ble Ms. Archana Wadhwa, Member (Judicial)
Hon'ble Mr. 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 should 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 Departmental authorities?
Yes
Bhalinder Singh Mann Appellants
Vs.
Commissioner of Customs (Gen) Respondent
New Delhi Appearance:
Shri Piyush Kumar, Advocate for the Appellants Shri Ranjan Khanna, DR for the Respondent CORAM:
Hon'ble Ms Archana Wadhwa, Member (Judicial) Hon'ble Mr. B Ravichandran, Member (Technical) Date of Hearing/ Decision: 06.04.2016 FINAL ORDER NO. 51297 /2016 Per B Ravichandran:
The appellant is a licensed customs broker. The present appeal is against the order of the Commissioner of Customs (General) New Delhi dated 24.4.15, confirming the suspension of the Customs Broker license of the appellant. The said order was issued on the ground that appellant acted in a irresponsible manner and failed to fulfill the obligation under Regulation 11(a), 11(d) and 11(n) of CBLR, 2013. The actions relates to Bill of Entry filed by the appellant on behalf of M/s. Nomita International, New Delhi for the clearance of glass beads. On examination, it was found that the importer had declared glass chattons as glass beads and in excess quantity. Based on preliminary investigation by the officers, the impugned order was passed by the Commissioner. The said order is challenged both on merits as also on not following the proper procedure and time limit as prescribed under CBLR, 2013. The learned Counsel appearing for the appellant submitted that the appellant has followed all the obligations before filing the Bill of Entry, based on various documents submitted by importer. As the Customs Broker, they cannot be put to any penal liability even if there was some mis-declaration done by the importer, as long as the Customs Broker has followed the conditions and the obligations prescribed under CBLR, 2013. Regarding the time frame to be followed by the officers entrusted with the powers of suspension or revocation of license, it is the case of the appellant that their license was suspended on 20.3.2015 and confirmed by the impugned order dated 24.4.2015. Though the show cause notice in terms of Customs Act, 1962 has been issued on 18.11.2015, no notice or proceedings have been initiated under Regulation 22 of CBLR, 2013 till date.
2. The continuation of suspension of their license has to be held as bad in law on this grounds alone. Further, the learned Cousnel submitted that their license was renewed on 2.6.15 even during the operation of order of suspension.
3. The learned AR submitted that the suspension of license was proper for valid reasons as mentioned in impugned order. It is premature on the part of the appellant to approach the Tribunal as the enquiry proceedings under CBLR has not been completed.
4. We have heard both the sides and perused the appeal records. The admitted facts of the case are that a license of the appellant was suspended on 23.2.2015 and the order of Commissioner was confirmed by the impugned order dated 24.4.15. Till date no show cause notice is issued for initiating proceedings under the provisions of CHLR, 2013. The Tribunal in the case of Gunjan Sharma vs. CC, New Delhi [2015 (318) ELT 513 (Tri-Del)] held that in such situations the suspension order is not sustainable. Similar view has been taken note of in the case of Eagle Shipping Agency vs. CC(G) Mumbai [2015 (327) ELT 694 (Tri-Mum)].
5. In the case of Master Cargo Service [2015 (330) ELT 465 (Tri-Chennai)], Tribunal held that if no proceedings were initiated within 90 days of receipt of offence report, suspension of license cannot be continued.
6. We also take note of Tribunals decision in the case of M/s. Swati Freight Movers vs. CC New Delhi [Final Order No. C/A/60/12-Cus dated 24.2.2012] wherein it was held that suspension cannot continue when there is no renewal of license in between.
7. Considering the above decided cases and the fact that in the present case, though this suspension was confirmed on 24.4.2015, till now no proceedings by way of issue of show cause notice or inquiry has been initiated under CBLR, 2013 against the appellant, we find the impugned order cannot be sustained. It is also noted that the appellant got renewal of license during the continuation of suspension. In these circumstances, we find that the continuation of suspension is not legally sustainable and accordingly, we set aside the impugned order and allow the appeal.
(operative part of the order pronounced in the open court )
( Archana Wadhwa ) Member(Judicial)
( B Ravichandran )
Member(Technical)
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