Custom, Excise & Service Tax Tribunal
Neptune Clearing Agency vs Commissioner Of Customs (General) on 7 May, 2012
IN THE CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL,WEST ZONAL BENCH AT MUMBAI COURT No. II APPEAL No.C/44/10 (Arising out of Order-in-Original No.152/2009/CAC/CC/SLM dated 15/10/2009 passed by Commissioner of Customs (General), Mumbai) For approval and signature: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R. Chandrasekharan, 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 : 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? ========================================
Neptune Clearing Agency Appellant Vs. Commissioner of Customs (General) Respondent Mumbai Appearance: Shri.H.R. Shetty, Advocate for appellant Shri.Navneet, Addl. Comm. (AR), for respondent CORAM: Honble Mr. Ashok Jindal, Member (Judicial) Honble Mr. P.R.Chandrasekharan, Member (Technical) Date of Hearing : 07/05/2012 Date of Decision : 07/05/2012 ORDER NO Per: Ashok Jindal
1. The appellant, who is a CHA has filed this appeal against the order of revocation of their CHA licence by the Commissioner of Customs (General) on 15/10/2009.
2. The Ld. Counsel for the appellant submits that an inquiry was initiated against the appellant for violation of Regulation 12, 18 (1) and 13 (n) of CHALR, 2004, on 19/01/2007 by issuing article of charges.
(a) A reply was filed on 27/08/2007 and hearing was fixed from time to time. On 12/03/2008 it was submitted by the appellant to the inquiry officer that the hearing has been fixed for 18-19/03/2008, as the Counsel for the appellant was busy in some cases in Ahmedabad and he could not be able to attend the proceedings on 18/03/2008 and sought adjournment. Thereafter, on 19/03/2008 proceedings took place wherein the matter was adjourned for 26-27/03/2008 and no notice of hearing was sent to the appellant. Therefore, there is a gross violation of principles of natural justice to the appellant.
(b) In view of these submissions, the inquiry proceedings as well as adjudication proceedings against the appellants in violation of principles of natural justice, hence, are liable to be set aside.
3. On the other hand, Shri Navneet, Ld. DR strongly opposed the contentions of the Ld. Advocate and submits that the appellant is a CHA, who appeared before the inquiry officer on 12/03/2008 and was knowing that the matter was fixed for hearing on 18-19/03/2008 and thereafter he has not taken any steps to know the next date of hearing in the proceedings against him, therefore, it cannot be held that principles of natural justice has been violated.
4. As the appellants opted not to appear before the authorities, therefore, the impugned order is correct in the eyes of law and is to be upheld.
5. Heard both sides and perused the records.
6. On perusal of the records, we find that on 19/03/2008 hearing took place and it was recorded that the persons whose statements have been recorded and who has been asked to appear on 18-19/03/2008 and had not appeared for the same. Thereafter, it is further recorded that since the noticees to appear for personal hearing to those persons have been sent by post and the said persons were not present. It is requested that the Presenting Officer to ensure that the notices for hearing to be held on 26-27/03/2008 be served to the persons at their residential addresses, the undersigned would getting the letter served at their office premises.
7. Thereafter a report was sought from the Ld. AR to produce the records whether notices of hearing for 26-27/03/2008 was served on the persons or not, as the same is not available in the records, therefore, presumption goes against the revenue. It is held that notices for the hearing to be held on 26-27/03/2008 were not served on the appellant as directed by the Inquiry Officer.
8. In view of these observations, we find that the principles of natural justice has been violated, therefore, the inquiry proceedings were held in the back of the appellants and the same are liable to be set aside. Consequently, the impugned order is based on the inquiry report; the same is also not having any existence in the eyes of law. Accordingly, the impugned order is set aside. Appeal is allowed with consequential relief.
(Dictated in Court) (P.R. Chandrasekharan) Member (Technical) (Ashok Jindal) Member (Judicial) pj 1 4