Custom, Excise & Service Tax Tribunal
M/S Prompt Air & Sea Cargo Pvt. Ltd vs Cc (Gen.), New Delhi on 16 November, 2016
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL West Block No.2, R. K. Puram, New Delhi, Court No. 1 Date of hearing: 31.10.2016 Date of Pronouncement: 16.11.2016 Customs Appeal No. 51981 of 2016 (Arising out of order in original No. 19/SM/SUSPENSION/POLICY/2016 dated 13.04.2016 passed by the Commissioner OF Customs (Gen), New Customs House, New Delhi) M/s Prompt Air & Sea Cargo Pvt. Ltd. Appellant Vs. CC (Gen.), New Delhi Respondent
Appearance:
Sh. V. S. Negi, Advocate for the appellant Ms. Suchitra Sharma, AR for the Respondent Coram:
Honble Mr. Justice (Dr.) Satish Chandra, President Honble Mr. Ashok K. Arya, Member (Technical) Final Order No. 55038 /2016 Per: Ashok K. Arya:
The appellant namely M/s Prompt Air & Sea Cargo Pvt. Limited is in appeal against Commissioners order dated 13.04.2016, whereunder the suspension of Customs Brokers licence of the appellant has been confirmed.
2. The appellant has been represented by Sh. V. S. Negi, ld. Counsel and Revenue has been represented by Ms. Suchitra Sharma, ld. AR.
3. The appellant based on appeal memorandum mainly submits as follows:
(i) Continuing suspension of CB licence without issuing the notice under Regulation 20 of CBLR 2013 is not sustainable.
(ii) The suspension under Regulation 19 ibid in itself was wrong and further continuation of suspension of CB licence, without issue of the show cause notice within specified time period of 90 days from the date of receipt of offence report under Regulation 20 is contrary to statutory provision.
(iii) In A. M. Ahamed & Co. vs. Commissioner of Customs ((Imports) Chennai-2014 (309) ELT 433 (Mad.) and in Lohia Travels & Cargo vs. CC (General), New Delhi -2016 (331) ELT 614 (Tri. Del.) it has been held that the time limit prescribed in the said Regulations are not directory but are mandatory and need to be strictly adhered to, therefore, in the fact and circumstances of the case the suspension order dated 13.04.2016 need to be set aside. In support, the appellant further relies on the following case laws:
(a) Sanco Trans Ltd. vs. CC, Seaport /Import Chennai -2015 (322) ELT 170 (Mad.)
(b) Master Stroke Freight Forwarders Pvt. Ltd. vs. CC (Imports) Chennai-I 2016 (332) ELT 300 (Mad.)
4. The ld. AR for the Revenue reiterates the findings given in the impugned order.
5. We have carefully considered the facts of the case, the submissions of both sides and the case laws cited.
6. In this case, the appellants Customs Brokers licence was suspended vide order dated 15.03.2016 and confirmation of the suspension was done vide the impugned order dated 13.04.2016. Regulation 20 of Customs Brokers Licencing Regulation, 2013 (CBLR) specifically says that Revenue (Principal Commissioner/ Commissioner ) shall issue a notice in writing to the Customs Broker within a period of 90 days from the date of receipt of offence report stating the grounds on which it is proposed to revoke the licence or impose penalty.
6.1. The Revenue initially suspended appellants customs broker licence on 15.03.2016 and confirmed the suspension on 13.04.2016. In other words, customs took notice of the offence committed by the appellant on 15.03.2016, the date when the appellants licence was suspended. Regulation 20(1) of CBLR, 2013 is clear that within 90 days on receipt of the offence report, a show cause notice has to be issued to the said custom broker for revocation of licence or imposition of penalty. In the present case, the Revenue has confirmed the suspension of the custom broker licence vide the impugned order dated 13.04.2016 (which is in the nature of penalty). However, no show cause notice in writing was issued to the custom broker for which time limit is 90 days from the date of receipt of offence report against the custom broker. In the present case, the said time limit of 90 days has expired long back. If the date of receipt of offence report is taken as 15.03.2016, when the suspension of licence was made vide order No. 13/SM/SUSPENSION/ POLICY/2016 dated 15.03.2016, the show cause notice either for revocation of licence or imposition of penalty should have been issued by 14.06.2016. However, no such action in the form of issue of show cause notice to the appellant custom broker has been taken.
6.2. In the present case, the suspension was confirmed against the appellant vide impugned order dated 13.04.2016 and period of 90 days from the date of impugned order also expires on 12.07.2016. However, even by 12.07.2016 the revenue has not issued any show cause notice in this regard to the appellant, thus, not adhering to the provisions of Regulation 20(1) of CBLR, 2013.
6.3. In effect the Revenue by non-issue of show cause notice to the appellant custom broker within the period of 90 days from the date of receipt of offence report (which is factually 29.02.2016, when Joint Commissioner of SIIB, Air Cargo Import Commissionerate, New Delhi informed Commissioner regarding the violation of Rules and Regulation contained in CBLR 2013 by the respective staff of the appellant as mentioned in para 2 of the impugned order), has violated the provisions of Regulation 20(1) of CBLR, 2013. Thus, when within 90 days of this date i.e. 29.02.2016 (date of receipt of offence report), which happens to be over on 28.05.2016, Revenue did not issue show cause notice to appellant, it violated the provisions of Regulation 20(1) of CBLR, 2013. Though suspension order was issued on 13.03.2016 and confirmation of the same was done by the impugned order dated 13.04.2016, the inaction of Revenue by non issuance of show cause notice as per Regulation 20(1) of CBLR, 2013 makes continuing suspension invalid in the eyes of law. The result is that the appellants right to carry on his profession and to earn livelihood has been affected without following the proper procedure prescribed under relevant provisions of CBLR, 2013. In this regard CESTAT Chennai in the case of Eltec Associates vs. CC (Port-Import) Chennai 2016 (334) ELT 124 (Tri. Chennai) quotes Tribunals order in the case of Manjunatha Shipping Services vs. Commissioner 2014 (313) ELT 226 (Tri. ) and Honble Madras High Court decision in case of R. Sandosh Kumar (in W.P. No. 8409 of 2013 dated 14.03.2014); and by following these decisions, the impugned order confirming the suspension is hereby set-aside and the appeal is allowed.
(Pronounced on 16.11.2016).
(Justice (Dr.) Satish Chandra)
President
(Ashok K. Arya)
Member (Technical)
Pant