Madras High Court
The Commissioner Of Customs vs M/S. Freight Field (Madras) Pvt on 13 March, 2020
Equivalent citations: AIR 2020 (NOC) 905 (MAD.), AIRONLINE 2020 MAD 297
Author: R.Suresh Kumar
Bench: Vineet Kothari, R.Suresh Kumar
Judgment in CMA.No.1746 of 2019
[The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai]
1/47
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 21.02.2020
Pronounced on : 13.03.2020
CORAM
THE HONOURABLE DR.JUSTICE VINEET KOTHARI
AND
THE HONOURABLE MR.JUSTICE R.SURESH KUMAR
C.M.A.No.1746 of 2019
The Commissioner of Customs
Chennai VIII Commissionerate
No.60, Rajaji Salai, Custom House,
Chennai - 600 001. ........ Appellant
-vs-
M/s. Freight Field (Madras) Pvt., Ltd.,
New No.39, Linghi Chetty Street,
Chennai - 600 001. ........ Respondent
Appeals filed under Section 130 of the Customs Act, 1962, against the
Final Order No.41695/2018, dated 31.05.2018 in Appeal Nos.C/194/2012-
DB on the file of the Customs Excise and Service Tax Appellate Tribunal,
South Zonal Bench, Chennai - 6.
For Appellant : Ms. Aparna Nandakumar
For Respondent : Mr. S.Murugappan
JUDGMENT
R.SURESH KUMAR, J This Appeal has been filed under Section 130 of the Customs Act, 1962 against the Final Order No.41695/2018, dated 31.05.2018 made in Appeal No.C/194/2012-DB by the Customs, Excise and Service Tax Appellate Tribunal, South Zonal Bench at Chennai (in short "CESTAT") http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
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2. The brief facts which are required to be noticed for disposal of this Appeal are as follows :
(i) That the respondent was a licensee under Customs House Agents Licensing Regulations, 2004 (in short "CHALR, 2004"). Under the licence, the respondent/licensee can handle clearing and forwarding activities.
(ii) While so, on specific intelligence information, the Directorate of Revenue Intelligence Officials (DRI) inspected the Shipping Bill No.3245398, dated 26.08.2006 at the Chennai Air Cargo complex filed by the respondent/licensee on behalf of the Exporter M/s. India Lanka General Impex, Chennai and the consignee M/s. Quick Cargo (HK) Ltd.,
(iii) On such inspection, the Revenue found that, though the goods declared under the Shipping Bill was 22 sets of grinding stones and milling stones together with rods contained in 24 stainless steel cylinders of the grinder, on the detailed examination of the handles, it was found that, the handle had a cavity which was plastered and on removal of the plastered portion, a polythene bag containing white powder was found concealed. In all 10.565 Kgs of white coloured powder suspected to be "Ketamine Hydrochloride" were seized.
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(iv) Thereafter the said white powder was tested in the Laboratory and was declared that, it was "Ketamine Hydrochloride", which was a prohibited item. Therefore the Revenue initiated action against the exporter and also against the respondent/licensee. Initially the Customs Broker Licence of the respondent/licensee was suspended by order dated 02.03.2007 by the office of the Commissioner of Customs of Chennai Commissionerate, Customs House, Rajaji Bhawan, Chennai. However the said suspension order of the licence of the respondent was revoked by further order of the Commissioner of Customs, Chennai, dated 25.04.2007. The reason for such revocation of suspension of the licence was that, the suspension of licence was made after eight months and therefore since it was belatedly made, taking clue from decisions of the higher Courts of law, such an action claimed to have been taken by the Revenue, thereby the suspension of Customs Broker licence of the respondent was revoked accordingly.
(v) Thereafter on 15.05.2007, the Appellant/Revenue issued show cause notice under CHALR, 2004, where the following show cause was sought for :
"9. Hence, the CHA is called upon to show cause to Shri.A.Kalyanasundaram, Asst. Commissioner of Customs, Custom House, No.60, Rajaji Salai, Chennai - 600 001 who has been appointed as the http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 4/47 Inquiry Officer in this regard in terms of Regulation 23 of CHALR 1984 as to why the licence should not be cancelled and or security deposited by them forfeited under Regulation 21 (1) (b) of CHALR 1984 for non-compliance of the above said obligations. Written representations, if any, should reach the Inquiry Officer within 45 days from the date of receipt of this notice. They are also informed that their reply accompanied with documents on which they may rely upon, should reach the Inquiry Officer within the stipulated time. If no reply is received, it will be construed that they have no explanations to offer and the case will be decided on the basis of evidence available on records.
10. This notice is issued under Regulation 23 of CHALR 1984 which were framed in terms of Section 146 of Customs Act 1962 without prejudice to any other action that may be initiated against them under Customs Law or any other law for the time being force in the Union of India."
(vi) Pursuant to the show cause notice, adjudication was conducted and after adjudication, the Revenue, i.e., the Licensing Authority, namely the Commissioner of Customs (Port-Import), Customs House, Rajaji Salai, Chennai - 1 passed the Order-in Original on 28.05.2012, whereby the authority chose not to revoke the licence of the respondent/licensee, but http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 5/47 only imposed penalty on the respondent by forfeiting the security deposit of Rs.25,000/- alone. Since the said order of imposing of penalty passed in Order-in- Original, dated 28.05.2012 was not in proportion with the proven charges / violations on the part of the respondent/licensee, the Revenue felt aggrieved over the said lenient view taken by the licensing Authority in not revoking the Customs Broker licence of the respondent and decided to prefer appeal against the Order-in-Original, dated 28.05.2012 before the CESTAT under Section 129A of the Customs Act, 1962. Accordingly such appeal was filed by the Revenue, which was decided by the CESTAT by the impugned order, dated 31.05.2018, whereby the CESTAT, only on the ground of jurisdiction / maintainability of the appeal, rejected the said appeal of the Revenue on the ground that under CHALR Regulations 2004, only the Customs Broker is entitled to prefer appeal against the order passed by the Licensing Authority, under Section 129A of the Customs Act and not an appeal by the Revenue, therefore on that ground alone, the appeal of the Revenue before the CESTAT was rejected through the impugned order.
Assailing the said order, the present appeal has been preferred by the Revenue.
3. Since the appeal was rejected only on the ground of maintainability of the appeal filed by the Revenue and not on merits, we are inclined to http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 6/47 examine only the said aspect as to whether the Revenue's Appeal filed before the CESTAT is entertainable within the meaning of Section 129A of the Customs Act or not.
4. In this regard, the present appeal was filed by the Revenue only on the following question of law :
"Whether the CESTAT is right in law in holding that the right to prefer an appeal under Section 129A of the Customs Act, 1962 against an order passed under the CHALR, 2004 is available only to a Customs Broker and not to the Revenue ?"
5. Before we go into the said aspects, first let us take the relevant regulations, namely, CHALR, 2004. The CHALR, 2004 was made by the Central Board of Excise and Customs in exercise of the powers conferred by sub-section (2) of Section 146 of the Customs Act. For ready reference, Section 146 of the Customs Act are quoted below :
"146. Licence for Customs Brokers:
(1) No person shall carry on business as a customs broker relating to the entry or departure of a conveyance or the import or export of goods at any customs station unless such person holds a licence granted in this behalf in accordance with the regulations.
http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 7/47 (2) The Board may make regulations for the purpose of carrying out the provisions of this section and, in particular, such regulations may provide for -
(a) the authority by which a licence may be granted under this section and the period of validity of such licence;
(b) the form of the licence and the fees payable therefor;
(c) the qualifications of persons who may apply for a licence and the qualifications of persons to be employed by a licensee to assist him in his work as a customs broker;
(d) the manner of conducting the
examination;
(e) the restrictions and conditions
(including the furnishing of security by the licensee) subject to which a licence may be granted;
(f) the circumstances in which a licence may be suspended or revoked; and
(g) the appeals, if any, against an order of suspension or revocation of a licence and the period within which such appeal may be filed."
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6. The 2004 CHALR, since was framed accordingly pursuant to Section 146 as quoted above, inter alia provides how and by whom Customs Broker Licence can be issued to the eligible applicants and if there is any violation or default of the regulation itself, what shall be the corrective or punitive action to be taken against the erring Customs Broker Licencee, have been dealt with.
7. In this context, the Regulation 9 provides for grant of licence, which reads thus :
"9. Grant of licence.-
(1) The Commissioner of Customs shall on payment of a fee of Rs. 5,000/- grant a licence in Form B to an applicant who has passed the examination referred to in regulation 8. (2) The Customs House Agents who are granted licences under sub-regulation (1) shall be eligible to work in all Customs Stations within the country subject to intimation in Form C to the Commissioner of Customs of the concerned Customs Station where he intends to transact business. No separate licence shall be required in places where in addition to a Customs House handling imports by sea, there is also an International airport to handle imports by air, http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 9/47 even if under the jurisdiction of a different Commissioner of Customs.
(3) The Commissioner of Customs may reject an application for the grant of licence to act as Customs House Agent if the applicant is involved in fraud or forgery, or any criminal proceedings are pending before any court of law against him or he has been convicted in any court of law.
(4) Any applicant aggrieved by the order of the Commissioner of Customs passed under sub-
regulation (3) may appeal to the Chief
Commissioner of Customs or Chief
Commissioner of Customs and Central Excise, as the case may be, within a period of thirty days from the communication of such order. (5) The Chief Commissioner of Customs or the Chief Commissioner of Customs and Central Excise, as the case may be, may, on his own motion or otherwise, call for and examine the records of any proceedings in which the Commissioner of Customs has passed the order under sub-regulation (3) for the purpose of satisfying himself as to the legality, propriety or correctness of such order and may pass such other orders as he may deem fit. No order under this sub-regulation shall be made so as to prejudicially affect any person unless such http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
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(6) No order shall be made under sub-
regulation (5) in relation to an order passed by Commissioner of Customs under sub-regulation (3) or sub-regulation (1), as the case may be, after the expiry of one year from the date on which such order was passed by the Commissioner of Customs."
While granting licence, the licensee must execute a bond and also must furnish a security under Regulation 10, which reads thus :
"10. Execution of bond and furnishing of security.-
(1) Before granting a licence under regulation 9, the Commissioner of Customs shall require the applicant to enter into a bond in Form D and, if necessary, a surety bond in Form E for due observance of these regulations and shall also require him to furnish a bank guarantee, postal security or National Savings Certificate in the name of the Commissioner of Customs for an amount of Rs. 50,000/- for carrying out of business as a Customs House Agent. (2) If the applicant furnishes postal security or National Savings Certificate, the same shall be pledged in the name of the Commissioner of http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 11/47 Customs and the applicant shall get the benefit of the interest accruing on it."
8. Under Regulation 11, the licence once issued will be valid for 10 years, thereafter it can be renewed on application made by the licensee before the expiry of the validity of the licence and once such application is made for renewal, the licensing authority, on satisfaction of the performance of the licensee can renew the same for the further period of 10 years.
Regulation 11 reads thus :
"11. Period of validity of a licence.-
(1) A licence granted under regulation 9 shall be valid for a period of ten years from the date of issue and shall be renewed from time to time in accordance with the procedure provided in sub-regulation (2).
Provided that licence granted to a Customs House Agent, authorized under the Authorised Economic Operator Programme, shall be valid till such time the authorization granted to the Customs House Agent under the Authorised Economic Operator Programme is valid.
(2) The Commissioner of Customs may, on application made by the licensee before the expiry of the validity of the licence under sub- regulation (1), renew the licence for a further period of ten years from the date of expiration http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 12/47 of the original licence granted under regulation 9 or of the last renewal of such licence, as the case may be, if the performance of the licensee is found to be satisfactory with reference, inter alia, to the following :-
(a) quantity or value of cargo cleared by such licensee conforming to norms as may be specified by the Commissioner;
(b) absence of instances of any complaints of misconduct including non-compliance of any of the obligations specified in regulation 13. (3) The fee for renewal of a licence sub-
regulation (2) shall be Rs. 5000/-.
Provided that there shall be no fee for renewal of a licence under sub-regulation (2) in respect of the Customs House Agents authorized under the Authorised Economic Operator Programme."
9. Regulation 13 provides the obligations of Customs House Agent to be fulfilled, which reads thus :
"13. Obligations of Customs House Agent.- A Customs House Agent shall -
(a) obtain an authorisation from each of the companies, firms or individuals by whom he is for the time being employed as Customs House Agent and produce such authorisation http://www.judis.nic.in whenever required by the Deputy Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 13/47 Commissioner of Customs or Assistant Commissioner of Customs;
(b) transact business in the Customs Station either personally or through an employee duly approved by the Deputy Commissioner of Customs or Assistant Commissioner of Customs;
(c) not represent a client before an officer of Customs in any matter to which he, as an officer of the Department of Customs gave personal consideration, or as to the facts of which he gained knowledge, while in Government service;
(d) advise his client to comply with the provisions of the Act and in case of non-
compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs;
(e) exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage;
(f) not withhold information contained in any order, instruction or public notice relating to clearance of cargo or baggage issued by the Commissioner of Customs, from a client who is entitled to such information;
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(g) promptly pay over to the Government, when due, sums received for payment of any duty, tax or other debt or obligations owing to the Government and promptly account to his client for funds received for him from the Government or received from him in excess of Governmental or other charges payable in respect of the clearance of cargo or baggage on behalf of the client;
(h) not procure or attempt to procure directly or indirectly, information from the Government records or other Government sources of any kind to which access is not granted by the proper officer;
(i) not attempt to influence the conduct of any official of the Customs Station in any matter pending before such official or his subordinates by the use of threat, false accusation, duress or the offer of any special inducement or promise of advantage or by the bestowing of any gift or favour or other thing of value;
(j) not refuse access to, conceal, remove or destroy the whole or any part of any book, paper or other record, relating to his transactions as a Customs House Agent which is sought or may be sought by the Commissioner of Customs;
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(k) maintain records and accounts in such form and manner as may be directed from time to time by a Deputy Commissioner of Customs or Assistant Commissioner of Customs and submit them for inspection to the said Deputy Commissioner of Customs or Assistant Commissioner of Customs or an officer authorised by him whenever required;
(l) ensure that all documents, such as bills of entry and shipping bills delivered in the Customs Station by him show the name of the importer or exporter, as the case may be, and the name of the Customs House Agent, prominently at the top of such documents;
(m) in the event of the licence granted to him being lost, immediately report the fact to the Commissioner of Customs;
(n) ensure that he discharges his duties as Customs House Agent with utmost speed and efficiency and without avoidable delay.
(o) verify antecedent, correctness of Importer Exporter Code (IEC) Number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information."
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10. Regulation 20 speaks about the suspension or revocation of licence and Regulation 22 provides for the procedure for suspending or revoking licence under Regulation 20. Sub-regulation 7 of Regulation 22 reads thus :
"(7) The Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs House Agent, pass such orders as he deems fit within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-
regulation (5)."
11. Here in the case in hand, even though the licence of the respondent was originally suspended for some time, subsequently the suspension was revoked for a different reason, subsequently the adjudication process commenced by issuance of show cause notice, dated 15.05.2007 and after adjudication, the final order, i.e., Order-in-Original was passed on 28.05.2012, of course under sub-regulation 7 of Regulation 22.
12. No doubt sub-regulation 7 of Regulation 22 provides the discretion to Commissioner of Customs to pass such orders as he deems fit. What kind of orders can be passed in case of proven misconduct, i.e., violation of the http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 17/47 Regulation itself, has been provided in sub-regulation 1 of Regulation 20, which reads thus :
"20. Suspension or revocation of licence.-
(1) The Commissioner of Customs may, subject to the provisions of regulation 22, revoke the licence of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part or whole of security, on any of the following grounds, namely :-
(a) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under regulation 10;
(b) failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else;
(c) any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or any where else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station."
13. Therefore the Commissioner of Customs, on proven charges against the licensee, either can revoke the license of the Customs House Agent as well as forfeiting whole or part of the security deposit or only order http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 18/47 for forfeiture of part or whole of security deposit. Though such a discretion was given to the Commissioner of Customs, in a case where the Customs Broker Licensee violated several obligations on the part of the Customs House Agent, as has been contemplated under Regulation 13, whether a mere forfeiture of deposit of a sum of Rs.25,000/- alone can be inflicted as punishment or the license itself should be revoked is a question to be decided depending upon the facts and circumstances of that particular case.
Therefore whatever order culminated pursuant to the adjudication proceedings made by the Commissioner of Customs under the CHALR, such order, whether can be testified before the Appellate Authority, namely the CESTAT under Section 129A of the Customs Act or not is the question here.
14. In this context, Mr.S.Murugappan, learned counsel appearing for the respondent/licensee has heavily relied upon sub-regulation 8 of Regulation 22, which reads thus :
"(8) Any Customs House Agent aggrieved by any decision or order passed under regulation 20 or sub-regulation (7) of regulation 22, may prefer an appeal under section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-
section (1) of section 129 of the Act."
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15. By relying upon the sub-regulation 8 of Regulation 22, Mr.S.Murugappan, learned counsel would vehemently contend that, only the aggrieved Customs House Agent, by any decision or order passed under Regulation 20 or sub-regulation 7 of Regulation 22, can prefer an appeal under Section 129A of the Customs Act, thereby the Revenue is totally prohibited from filing any appeal against whatever order passed by the Customs authorities either under Regulation 20 or under Regulation 22(7).
16. The learned counsel also would urge that, any order passed by the Customs authorities who exercise the power under various regulations of CHALR shall only be construed as an administrative order, therefore as against which, no appeal would lie before the CESTAT under Section 129A of the Customs Act.
17. In support of his contention, the learned counsel would rely upon a Co-ordinate Bench decision of this Court in the matter of Commissioner of Customs Exercise v. Aren Shipping Agents (P) Ltd., reported in MANU/TN/3219/2016 : 2016 (341) ELT586 (Mad.) and would make submissions by relying upon following paragraphs of the said Judgment :
"33. Renewal of licence is as good as granting a new licence, granted under the provisions of an Act. It has the effect of continuation of http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 20/47 licence already granted. In Gajraj Singh v. State Transport Appellate Tribunal reported in MANU/SC/0116/1997 : 1997 (1) SCC 650, the Hon'ble Supreme Court considered a case for renewal of licence, under the Motor Vehicles Act, 1988 and held that renewal of licence means a new licence, granted by way of renewal. The Hon'ble Apex Court held that while considering an application for renewal, all the conditions required to be complied with, under the statutory provisions, rules or regulations, as the case may be, for grant of fresh licence and any other conditions, imposing performance of the conditions of licencee, have to be complied with. Procedure set out in CHALR, 2004, does not provide for any adjudication, either for grant of fresh licence or renewal.
34. In the case on hand, while considering the renewal application, the licencing authority has acted as an adjudicating authority. The need, according to him, was, whether the licencee, who had not renewed the licence, issued at Vizag, is entitled to get the licence issued by the Chennai Commissionerate, renewed? If there was any such pre-condition, in our view, he should be answered the issue administratively, but in the case on hand, the http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 21/47 licencing authority, seemed to have taken a decision that the abovesaid question requires adjudication. In the light of Gajraj Singh's case (cited supra), it is our considered opinion that adjudication is not required, while considering a renewal application. Grant or renewal of licence, is administrative in nature. Scheme of Regulations, 1984 or 2004, as the case may be, does not envisage an adjudicatory process. If the argument of the appellant is accepted, then, even granting licence should be held as adjudicatory, which is not the intent.
35. Section 129 of the Customs Act, 1962, provides for an appeal. Bare reading of the abovesaid Section may indicate that any decision or order passed by the adjudicating authority, can be appealed to the Tribunal. The Regulations dealing with grant of licence for renewal should be harmoniously read with the provisions of the Customs Act, 1962 and should be given the effect, in conformity with the legislative intent.
36. Provisions of the Customs Act, cannot be read in isolation and the same have to be read harmoniously with the Regulations framed thereunder. Thus, on the principle of harmonious construction and going through the entire Regulations, we are of the http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 22/47 considered view that an order, rejecting an application for renewal, is administrative in nature.
37. Perusal of the order of CESTAT, Chennai, dated 14.07.2009, shows that by following the orders, extracted supra, the Tribunal has held that the appeal filed against the order, on the application to renew the licence issued to the Customs House Agent, under the CHALR, 1984 or 2004, as the case may be, is not maintainable. In the light of our discussion and decisions, stated supra, we are not inclined to interfere with the order of the Tribunal. Accordingly, we answer the substantial questions of law, as against the Revenue. Hence, the Civil Miscellaneous Appeal is dismissed. No costs. Consequently, connected Miscellaneous Petition is closed."
18. By relying upon the aforesaid decision and by making the aforesaid submissions, the learned counsel for the respondent/licensee would further submit that, the final order, i.e., the Order-in-Original passed by the Commissioner of Customs has infact imposed the penalty by forfeiting the security deposit of Rs.25,000/- against the respondent/licensee, therefore that itself is a punishment and such kind of orders can very well be passed by the Commissioner of Customs under sub-regulation 7 of Regulation 22, http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 23/47 which provides all discretion to the said authority to pass such orders as he deems fit. The word 'such orders as he deems fit' gives a wider discretion to the Commissioner of Customs to pass ultimate final order, after enquiring the matter and if any such order passed by the Commissioner of Customs against the Customs Broker is prejudicial to the interest of the Customs Broker, then he alone can prefer appeal as contemplated under sub-
regulation 8 of Regulation 22 before the CESTAT under Section 129A of the Act and such facility is not given to the Revenue to prefer any appeal, since the Revenue has been specifically omitted to be mentioned in sub-regulation 8 of Regulation 22.
19. He would also urge that, if at all the makers of the Regulation, i.e., the Board, thought of providing an appeal to the the Revenue also, the words in sub-regulation 8 must be that, "any person aggrieved by any order passed under Regulation 20 or sub-regulation 7 of Regulation 22" which could have been employed with, instead, the words employed therein, i.e., at sub-regulation 8 is only "any Customs House Agent aggrieved by any decision or order passed under Regulation 20 or sub-regulation 7 of Regulation 22". Hence it makes very clear that, the appeal provision was made available only to Customs House Agent and not to the Revenue, therefore the decision made by the CESTAT in rejecting the appeal of the http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 24/47 Revenue that, they do not have any right to prefer an appeal in view of the specific provision, i.e., Regulation 22(8), is fully justifiable and sustainable, therefore it does not warrant any interference from this Court, he contended.
20. However, Ms.Aparna Nandakumar, learned counsel appearing for the appellant Revenue has made submissions stating that, the merits of the case need not be canvassed before this Court for the purpose of disposal of this appeal, since the issue was only in respect of whether the Revenue has got appeal remedy against a decision under CHALR Regulations before the CESTAT under Section 129A or not. Only to justify the circumstances as in the case of the present one, which warrants such situation to the Revenue to file appeal before the CESTAT under Section 129A of the Act, since the Revenue would be an aggrieved party, in view of the orders passed by the Licensing Authority, i.e., the Commissioner of Customs who exercise the power under Regulation 22(7) of the (CHALR) Regulations 2004, by taking a very lenient view despite severe violation of licensing regulations like the present one, the Revenue, only for the purpose of deciding the issue raised before this Court, points out the circumstances justifying the Revenue's desire to prefer appeal.
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21. By making these prelude, the learned counsel would further submit that, the order passed by the Customs Broker Licensing Authority, in Order-
in-Original, is not an administrative order, as it is purely an order after adjudication, therefore such order is very well be covered within the circumstances mentioned under Section 129A of the Customs Act, therefore, it is an appealable order.
22. She would further submit that, the respondent/licensee has violated various provisions of the Licensing Regulations and this has been proved on the adjudication and the same having been recorded in the findings of the authority who passed the Order-in-Original, however he has taken a very lenient view by just imposing Rs.25,000/- penalty by way of forfeiting the security deposit alone and permitting the licensee to continue his business which would set a wrong precedent that, whatever the illegality or unlawfulness or violations committed by the Customs Broker that would be taken lightly by imposing a mere penalty and at any cost, the licence would not be revoked. This would not be a deterrent to such kind of violators especially who makes serious violations causing serious set back, as the case in hand involves in attempting to smuggle prohibited or banned goods like the "Ketamine Hydrochloride". Therefore the learned counsel would submit that, the Revenue has got every right to prefer an appeal made against the http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 26/47 Order-in-Original.
23. Learned counsel for the Revenue would also rely upon a decision of the Karnataka High Court at Bangalore in the matter of Cargomar v. Union of India, Ministry of Finance and others in W.P.No.15866 of 2016.
24. Hence the learned counsel for the Revenue would submit that, the appeal remedy since has not been specifically prohibited even under sub-
regulation 8 of Regulation 22, for Revenue, such a prohibition cannot be imposed against the Revenue, as no party to any adjudicating proceedings can be rendered remediless against the order to be passed by such adjudicating authority in case such party is aggrieved over the same. Hence the learned counsel would urge that, the order of CESTAT which is impugned herein, certainly requires interference, hence she prayed for such intervention.
25. We have considered the said rival submissions made by the learned respective counsels appearing for the parties and have given our anxious consideration to those submissions as well as the materials placed before this Court for our perusal.
http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 27/47
26. Though the facts of the case in nutshell have been given in the opening portion of this order, those factors have been given only as a narration of the facts and therefore in respect of the merits of the case is concerned, we are not propose to make any comment on the violation or non-violation on the part of the respondent. However in order to justify our conclusion to be reached in the latter part of this Judgment, certain factual aspects also to be mentioned herein, therefore only for that purpose, we propose to mention or refer to some of the facts of the case.
27. We have already quoted Regulation 13, where 15 situations or obligations have been enumerated, which are supposed to be scrupulously fulfilled or followed by the Licensee.
28. If any of such obligation is violated, certainly the Licensee is liable to be penalised, of course as has been contemplated in the Regulations itself.
29. Here in the case in hand, though initially the licence was suspended, subsequently the suspension itself was revoked and thereafter show cause notice was issued for adjudication process. After adjudication, the licensing authority who passed the final order, i.e., the Order-in-Original, http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 28/47 has given the following findings against the respondent/licensee.
"16. A detailed enquiry was conducted in to all the above allegations and based on the inquiry report and the representation made by the CHA; I would like to discuss each in detail as under :
a. With regard to the charge of non-possession of any authorisation from the importer, the inquiry officer has discussed the issue in detail and come to the conclusion that in the instant case the CHA has signed the blank Annexures prescribed by the Customs to file the Shipping Bill which do not provide any provision for the exporter to sign and needs to be signed only by the CHA. Only in the case of filing the manual Shipping Bill there was a provision for exporter to sign. Hence, the case laws relied upon by the CHA are not relevant to the case. The Managing Director of the CHA Company himself admitted that he didn't have any authorisation from the exporters. The CHA didn't even know who the exporters were. Hence, the violation of Regulation 13(a) stands proved.
The CHA in their written submissions had only discussed that not getting authorisation is not a grave offence to cancel the licence of the CHA and also blamed the officers for not verifying the authorisation. However, he had not denied http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 29/47 that the fact that he had not obtained the authorisation. Moreover, the Managing Director of the CHA Company himself admitted that he has not even met the exporters, so no question of taking any authorisation from them. Hence, I find that the violation of the Regulation 13(a) stands sustained.
b. With regard to the Regulation 13(b) of transacting business either personally or through an employee duly approved by Dy. Commissioner of Customs, it is revealed from the inquiry officer report that the Managing Director of the CHA Shri.K.Rajashekaran, in his statement had accepted that he has signed the blank Annexures and handed over the same to M/s. Freight Bridge International, for monetary consideration. And also stated that he do not know the consignor, consignee and description of the cargo or any other particulars pertaining to the subject consignment. From this it is proved that the CHA has not transacted the business either personally or through his staff who is authorised staff and hence, the violation Regulation 13(b) is proved. Moreover, the business was handled by Sh.Rajaji of M/s. Freight Bridge International, Chennai, who is not the authorised staff of the CHA. Hence, the violation of Regulation 13(b) stands proved.
http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 30/47 The CHA in his submissions had stated that it is not necessary to know the exporter to meet the exporter in person before handling the consignment in the custom house; that as long as the documentation is proper and the authorised staff has handled the customs work there cannot be any allegation of violation; that in the present case though the annexures were handed over to Freight Bridge International, the notice staff undertook the processing work; that though the CHA in his statement has admitted that he did not meet the exporter but has categorically submitted that his authorised staff processed the work.
From the above submission, I find that the submission of the CHA that his authorised staff processed the work is an after thought but not presented at the time of Investigation. Moreover, the so called authorised staff is authorised signatory of another CHA M/s. Freight Bridge International. Hence, the violation of Regulation 13(b) also stands proved.
c. With regard to the violation Regulation 13(d) the inquiry officer revealed that the CHA did not even enquire about the holder of the IEC code supplied by Shri.Vikas Doshi. Thus, evidently, there was no scope of the appellant http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 31/47 giving any advice to the exporters to comply with the provisions of the Customs Act or bringing non-compliance to the notice of the department.
The CHA's representation is that they have not given any wrong advice to their client for them to be charged with the violation of Regulation 13(d).
For the above said violation, I find that the violation speaks about only advice to the clients to comply with the provisions of the Act, but not about the wrong advice or correct advice. Once, the CHA has not meet the exporter there is no chance of either giving advice or wrong advice. The CHA cannot simply wash of the hands by saying that exporter was not given any advice to perform illegal activity. It is the duty of the CHA to at least meet the exporter and enquire about the advice to be given to clients. Here has not even met the exporter or verified the IEC Code. Hence, the allegation under Regulation 13(d) stands proved. d. Regarding the violation of 13(e) the Inquiry officer had stated that it is the responsibility of the CHA to verify the antecedents and reputation of the exporter before accepting the consignment handling work from them. If the CHA had exercised due diligence cast upon http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 32/47 them under the Regulation 13(e) the exporter could not have made an attempt to export the banned goods in concealment. The CHA cannot shy away from the responsibilities casted upon them under the Regulation 13(e) by stating that examination of the goods is the officer's responsibility. In the instant case, as the appellant did not know the identity of the exporter and permitted their licence to be used for clearance of the export consignment of such exporters under a "contract of service", to which such exporters had no privy, there was no scope for the appellant advising the exporters regarding the particulars to be declared in the shipping bills so as to ensure the correctness of such particulars including the value of the goods. Hence, the allegation under Regulation 13(e) stands proved."
(Emphasis is ours)
30. The licensing authority found that, Regulation 13(a), 13(b), 13(d) and 13(e) were violated and the allegations made against the licensee in respect of violation of these regulations stand proved. This has been, in detail, discussed in the above said paragraphs quoted from the order of the Commissioner and conclusively at para 17 of the said order, he has stated as follows :
http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 33/47 "17. Thus from the above discussion, all the allegations under 13(a), 13(b), 13(d) and 13(e) stand conclusively proved."
31. However the reason given by the Commissioner of Customs (Imports), who passed the Order-in-Original, for taking a lenient view by not revoking the licence but imposed only a penalty of Rs.25,000/-, according to him reads thus :
"18. The CHA licence was already suspended for sometime and revoked thereafter. Hence, I chose not to revoke the licence of the CHA. But it is necessary to impose a severe penalty on them to prevent such incidences from taking place in future."
The penultimate part of the Order-in-Original reads thus :
"19. I order forfeiture of the security deposit of Rs.25,000/- (Rupees twenty five thousand only) submitted by the CHA M/s. Freight Field (Madras) Pvt., Ltd., for the violations of provisions of CHALR, 2004 proved in the proceedings before me. I also warn the CHA to be more careful in future."
(Emphasis is ours)
32. In this context, we would like to point out that, Regulation 9 speaks about grant of licence, which we have already quoted. From the reading of Regulation 9(3), it has become clear that, even at the time of http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 34/47 granting the licence initially if anything adversely noted against the applicant, the licensing authority can reject the application for grant of license.
33. Like that, under Regulation 11, which speaks about the validity of licence and renewal of licence, the licence once issued will be valid for 10 years, thereafter on application, it would be renewed, however the renewal is based on the satisfactory performance of the licensee. The language used in sub-regulation 2 of Regulation 11 states that, "If the performance of the licensee is found to be satisfactory with reference, inter alia, to the following:
(a)........
(b) absence of instances of any complaints of misconduct including non-
compliance of any of the obligations specified in Regulation 13".
34. Therefore even for a normal renewal of licence, after expiry of the term, the licensee must satisfy the licensing authority that, there is no complaints of misconduct including non-compliance of any of the obligation specified in Regulation 13. Therefore if any violation of Regulation 13 is noticed, then the licensee is not entitled to get the renewal of licence, even though such licensee has not been punished for such violation of Regulation 13. http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 35/47
35. From the reading of these regulations, we find that, the Board while making regulation, under Section 146(2) of the Customs Act, has made it clear that, certain obligations has to be scrupulously followed or to be fulfilled by the licensee as enumerated under Regulation 13 and if any violation is noticed, even though the licence is not revoked in between, at the time of renewal, that will have a bearing and such licensee would not be or may not be eligible to get renewal.
36. Therefore the paramount intention of the Regulation makers was that, the licensee must fulfill all obligations and no adverse notice should have been there against such licensee and on satisfaction of these aspects only even renewal can be given in normal circumstances.
37. When that being the position, if any violation is noticed and proved under which several obligations under Regulation 13 are violated by the licensee, whether still the licensee can survive without being subjected to revocation of such licence, is a moot question.
38. In that context, whether the circumstances, under which a lenient view taken in a case of this nature, justifies the action of licensing authority in taking such a lenient view, can very well be testified before the Court of http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 36/47 law. Further the order passed in Order-in-Original by the Commissioner of Customs / Licensing Authority is purely an adjudicative order and it cannot be construed as an administrative order.
39. In this context, the Judgment cited by the learned counsel for the respondent in the matter of Commissioner of Central Excise (Exports) (cited above) by a Co-ordinate Bench of this Court, would not help the case of the respondent/licensee, as in that case the Division Bench has made it clear that grant of licence is an administrative action and the rejection of an application for renewal is also an administrative action.
40. Here in the case in hand, the order passed under Regulation 22(7) is only based on adjudication and a detailed procedure has been contemplated under Regulation 22 as to how such adjudication has to be conducted and final order to be passed. Therefore whatever order passed under Regulation 22(7) can only be construed as an adjudicative order and not as an administrative order.
41. If such kind of adjudicative orders are passed, certainly those orders can be very well fit in the situation mentioned under Section 129A of the Customs Act, where 129A(1) (a) to (d) made it clear that, some specific orders as well as order passed by adjudicating authority are appealable to http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 37/47 the CESTAT.
42. Therefore the present order passed under Regulation 22(7), since being an order passed by the adjudicating authority, can be categorised under Section 129A(1)(a) of the Act, thereby the said order, in our considered opinion, can very well be appealed by an aggrieved party.
43. In support of this view, we would like to quote a decision of the Karnataka High Court, which in fact was authored by one of us (Dr.VINEET KOTHARI, J). For the sake of ready reference, we quote the relevant paras of the said Judgment of the Karnataka High Court in the matter of Cargomar v. Union of India, Ministry of Finance and Ors., [MANU/KA/0473/2018] "18. The contention raised by the learned counsel for the petitioner that Regulation 21 provides for an appeal to the Customs Broker only in the limited contingency of suspension and cancellation of licence and not under any other contingencies based on the reading of Section 146 (2)(g) of the Act is rather misconceived and does not deserve to be accepted. The power to frame Rules given to the Board in the various fields enumerated in http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 38/47 Clauses (a) to (g) of sub-Section (2) of Section 146 of the Act are not restrictive in any manner, but they provide for different fields for which Regulations can provide for. Unless the Regulation 21 quoted above itself was couched in a narrow and limited terms to provide for an appeal only against the suspension and cancellation of licence, the State could have said so, but Regulation 21 on the other hand is couched in wider terms and it stipulates that a Customs Broker may prefer an appeal under Section 129-A of the Act if he is aggrieved by any order passed by the Commissioner of Customs.
19. The word "any order" in Section 129-A of the Act would undoubtedly cover an order passed under Regulation 23 as well, more over, Section 129-A of the Act, the parent provision from which the right to appeal flows to the aggrieved person does not have any such restrictive terms incorporated in the said provision. It says that a decision or order passed by the Principal Commissioner of Customs as an 'adjudicating authority' shall be appealable. There is no doubt that the order passed under Regulation 23 by the Principal Commissioner of Customs is also an order passed by him as an 'adjudicating authority'.
http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 39/47 What is adjudicated and what is imposed in the order under the Regulations does not de-limit the scope of the appellate provisions but it is important only for deciding the consequence flowing from such orders.
20. The contention of the learned counsel for the petitioner assessee that the 'adjudication procedure' provided in Section 122-A of the Act namely of giving an opportunity of hearing if the party so desires is also without any merit as the said provisions of Section 122-A of the Act contained in Chapter XIV dealing with the 'Confiscation of Goods and Imposition of Penalties' does not deal with a contingency like "prohibition" under Regulation 23 quoted above. Therefore, the procedure provided in Section 122-A of the Act in Chapter XIV cannot be imported and read into the Regulation 23 as contended.
21. On the other hand, this Court is of the opinion that the nature of order passed under Regulation 23 with a non obstante clause therein is a more serious and drastic provision to check and prevent with immediate effect the on going illegal activities by the Customs Brokers. That is why an overriding and pervasive power has been conferred upon the learned Commissioner of Customs to http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 40/47 immediately prohibit any Customs Brokers from working in one or more Sections of the Customs Station if he finds that the Customs Broker has not fulfilled his obligations as laid down in Regulation 11 which inter alia lays down several obligations contained in Clause
(a) to (o) of Regulation 11 and as submitted at bar by the learned counsel for the Revenue. Clause 11 (e) inter alia enjoins upon the Customs Broker to exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage. Therefore, the Customs Broker cannot completely disentangle himself or distance himself from the mis-declaration made on behalf of the importers or by the importers themselves. While working under these Regulations, he undoubtedly acts as an agent of the Importer and his acts bind the Importer as the Principal. The purposes of these Regulations are obviously to prevent evasion of custom duties and illegal activities and declarations to evade duties to be checked and various consequences in these Regulations have been provided for including "prohibition" from functioning, suspension of licence which is India-wide permission or even cancellation http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 41/47 thereof. Regulation 23 does not in its own terms provide for any temporary or permanent prohibition. The said prohibition by the terms of Regulation 23 can continue even for an indefinite period. While the suspension and revocation of licence completely bar and ban the business of the Customs Brokers on all- India basis, the "prohibition" under Regulation 23 may have the effect only for a particular Section or Sections of the particular territorial jurisdiction of the Customs Station. The non obstante provisions of Regulation 23 to prohibit a Customs Broker from working in any Section of the particular territory of Customs Department, appears to have been enacted to put in place the effective measures against the illegal activities and evasion of duties and that is why the procedure of giving of a prior notice and opportunity of hearing appears to have not been deliberately provided for in the said Regulation 23. Nonetheless, the remedial measure to an aggrieved person is provided for in the Scheme of the Act and Regulation 21 itself.
22. Therefore, this Court is of the clear opinion that even the orders passed under Regulation 23 of 'Regulations of 2013' are appealable http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 42/47 under Section 129-A of the Act read with Regulation 21 of the 2013 Regulations.
23. It goes without saying that the Departmental Authorities including the Appellate Authorities and also the CESTAT under Section 129-A of the Act are better equipped and manned with experts in the field to measure the pros and cons of the cases arising under the Customs Act, 1962 and therefore they are better disposed of to deal with the situations arising under the said 'Regulations of 2013' namely "prohibitions" under Regulation 23, suspension of licence under Regulation 19, cancellation of licence under Regulation 18 and imposition of penalty under Regulation 20.
24. As far as exercise of jurisdiction under Article 226 of the Constitution is concerned, it is well settled that the Rule of alternative remedy is not a Rule of bar of jurisdiction of this Court under Article 226 of the Constitution of India, but a Rule of discretion invoked by the Court in its extra-ordinary jurisdiction and this Court would be slow in invoking the extra- ordinary jurisdiction under Article 226 of the Constitution of India, if the order impugned before it have not passed through the Forums of appellate remedies provided under the http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 43/47 relevant statutes. The purpose is that the Authorities created under the relevant statute must apply their mind to the relevant facts, evidence, objections and submissions of the rival parties, assessee on the one hand, revenue on the other hand and record their own reasons in writing for taking a particular view of the matter on either side of the issues so that the Constitutional Courts have the benefit of the final orders passed by such Authorities created under the statute and are not called upon to decide the issues prematurely without the Authorities under the Act in a hierarchy of channels provided under the relevant statutes apply their mind and pass appropriate orders.
25. Once this Court comes to the conclusion as it had already laid down in the earlier case in the case of M/s. Capricorn Logistics Pvt. Ltd.(supra) that the impugned order under Regulation 23 is an appealable order before the CESTAT under Section 129-A of the Act read with Regulation 21, it is not considered appropriate to touch the merits of the case and deal with the same, lest it prejudices the case of either of the parties before the Tribunal. It appears that on account of ex-parte interim order granted in the present case by the co-
http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 44/47 ordinate bench on 23/03/2016 staying all further proceedings in pursuance of Annexure B which is the impugned order under Regulation 23, the Respondent Customs Department has not been able to take any further proceedings in pursuance of the impugned order Annexure B under Regulation 23.
26. Under these circumstances, the present writ petition is disposed of as not maintainable with a liberty to the petitioner assessee to avail the remedy by way of an appeal under Section 129-A of the Act read with Regulation 21 before the Tribunal, if so advised in accordance with law."
44. We in fact agree with the said view taken by one of us in the said Judgment of the Karnataka High Court and we hereby reiterate and amplify the said view.
45. Even though we can make further our reasons and justification for interfering with the order of the CESTAT impugned herein by exploring the merits of the case, but we refrain ourselves from doing so, as that would cause prejudice to the parties before the CESTAT, since the CESTAT has not so far decided anything on merits.
http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 45/47
46. In view of the aforesaid Judgment of the Karnataka High Court which we affirm and agree and in view of the reasons stated herein above, we are of the opinion that, no party in an adjudicating proceedings can be rendered remediless by way of appeal and if any such contrary view is taken by Courts of law, that will be detrimental to the basic structure as enshrined in our Constitution, i.e., Judicial review. Therefore our conclusion in this regard is fully forfeited by the aforesaid reason also.
47. Though the words "any Customs House Agent aggrieved by any decision or order" is employed in Regulation 22(8), we should not fail to note that, there is no prohibition specifically or expressly made prohibiting the Revenue from preferring any appeal against any order passed under sub-
regulation 7 of Regulation 22. Therefore we are satisfied that, there is no bar or prohibition given in express terms in the said sub-regulation 8 of Regulation 22. Therefore the view taken by the CESTAT, of course following the earlier view of the CESTAT, is erroneous. Therefore we are not agreeing with the said view taken by the CESTAT and we consciously over rule such view.
48. For all these reasons stated above, we are inclined to interfere http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 46/47 with the order of the CESTAT, which is impugned herein and we accordingly do so.
49. In the result, the order impugned made by the CESTAT in Final Order No.41695/2018, dated 31.05.2018 in Appeal Nos.C/194/2012-DB is hereby set aside and the matter is remitted back to the CESTAT for deciding the issue on merits as raised by the parties by affording reasonable opportunity for both sides in accordance with law.
50. We make it very clear that, what has been stated in this order on the merits of the case, if any, is only to be construed as a narration of the facts for reaching the conclusion herein before we have made. Therefore the said reference shall not be construed as the opinion of this Court on the merits of the case, except the point of appeal remedy available to the Revenue.
51. In fine, the appeal is allowed and the Substantial Question of Law raised herein is answered in favour of the Revenue and against the Licensee / Respondent. However there shall be no order as to costs.
(V.K. J.) (R.S.K. J.) 13-03-2020 http://www.judis.nic.in Judgment in CMA.No.1746 of 2019 [The Commissioner of Customs v.
M/s. Freight Field (Madras) Pvt., Ltd., Chennai] 47/47 Index :Yes Speaking Order :Yes tsvn DR.VINEET KOTHARI, J.
AND R.SURESH KUMAR, J.
tsvn Judgment in C.M.A.No.1746 of 2019 http://www.judis.nic.in