Custom, Excise & Service Tax Tribunal
S Guha Sarkar &Amp; Co vs Kolkata(Admn Airport) on 23 January, 2020
(1)
Appeal No. C/76938/2018
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL
KOLKATA
Regional Bench - Court No. 2
Appeal No. C/76938/2018
(Arising out of Order-in-Original No.KOL/CUS/AIRPORT/ADMN/04/2018 dt.27.02.2018
passed by CC, Kolkata)
M/s S. Guha Sarker & Co.
43/10A, Jheel Road (New Land), ......Appellant
Kolkata - 700 031
VERSUS
Commissioner of Customs (Airport &
Administration), Kolkata ......Respondent
Customs House, Kolkata - 700 001 Appearance Shri H.K. Pandey, Advocate for the Appellant. Shri A.K. Singh, Authorized Representative for the Respondent.
Coram:
HON'BLE Mr. P.K. CHOUDHARY, MEMBER (JUDICIAL) HON'BLE Mr. P. VENKATA SUBBA RAO, MEMBER (TECHNICAL) FINAL ORDER No. 75110/2020 Date of Hearing: 26.11.2019 Date of Decision: 23 January 2020 [Order per: P. VENKATA SUBBA RAO.]
1. This appeal is filed against Order-in-Original No. KOL/CUS/AIRPORT/ADMN/04/2018 dt.27.02.2018 passed by Commissioner of Customs (Airport & Administration), Kolkata.
2. The appellant herein is a Customs Broker licensed under the erstwhile Customs House Agents Licensing Regulations (CHALR), 2004 as a Customs House Agent and is thereafter, called the Customs Broker as per the new Customs Brokers Licensing Regulations (CBLR), 2013 which have replaced the earlier CHALR, 2004.
3. They are licensed by the Kolkata Customs House but have been operating in Delhi also. In an investigation by the DRI, Delhi Zonal Unit, it was found that 53.8 lakh sticks of cigarette were attempted to be smuggled by concealing them in HDPE granules imported under the name of R.S. Import and Export (IEC No. 0511092610 dt.27.02.2012) by three persons, (2) Appeal No. C/76938/2018 viz., Shri Ajay Sagar, Shri Parshotam & Shri Gagan H. Vinayak. This consignment was imported under Bill of Entry No. 6149599 dt.27.07.2016 and stuffed in four containers. On investigation, it was found that the appellant herein was the Customs Broker who filed the Bill of Entry in the name of IEC in this consignment. When one of the persons involved, viz., Shri Ajay Sagar was questioned, he stated that they formed an informal partnership in the name of M/s Shivoy Enterprises and have been engaged in customs clearance work. Their license was suspended in a case booked by SIIB Customs, New Delhi and thereafter they have been using the license of the appellant to clear shipments. The appellant had given G-card to one Shri Sunil Dixit and he has the login ID and password of the appellant with which he filed Bills of entry. They had used the IEC and KYC details of M/s R.S. Import & Export as they already had these details with them and imported the goods in question.
4. Statements were also recorded from Shri Gagan H. Vinayak, another partner in the smuggling racket and Shri Rakesh Kumar, G-card holder of the appellant. After completing the investigation, a show cause notice was issued to the appellant calling upon them to explain as to why their customs broker license should not be revoked and their security deposit should not be forfeited. Enquiry proceedings were completed as per regulations and thereafter, by the impugned order, the adjudicating authority has, after giving three personal hearings, during which the appellant had not responded, ordered revocation of the customs broker license under Regulation 20(1) of CHALR, 2004 (now Regulation 18 of CBLR, 2013). He also ordered forfeiture of the entire security deposit made by the appellant under Regulation 20(1) of CHALR, 2004 (now Regulation 18 of CBLR, 2013).
The adjudicating authority has also recorded in his order at Para 26 as follows:
"26. Apart from the current proceedings, I also find that the CB has already been penalized for their role in smuggling of prohibited items and others vide Order-in-Original No. KOL/CUS/AIRPORT/ADMN/17/2016 dated 30.08.2016 passed by Commissioner of Customs (A & A), Customs House, Kolkata. An another SCN dated 22.09.2017 under CBLR, 2013 has been issued to the CB for their role in the smuggling of branded TVs etc. Hence I believe that the CB is habitual offender and does not deserve to be working as Customs Broker."
5. Aggrieved by this order, the present appeal has been filed on two grounds:
(3)Appeal No. C/76938/2018
a) Their license had already been revoked by the Principal Commissioner of Customs, Kolkata by his OIO No. KOL/CUS/AIRPORT/ADMN/17/2016 dt.30.08.2016. Therefore, the license was non est on the day this order was passed. Accordingly, the impugned order revoking a non-existent license is bad in law.
b) On the day the order was passed the Customs Broker Licensing Regulations, 2013 were already in place and the earlier regulations viz., CHALR, 2004 were no longer in existence. However, the license was revoked under the non-existing superseded CHALR, 2004. This shows non-application of mind by the adjudicating authority.
6. Learned departmental representative supports the impugned order and asserts that it calls for no interference.
7. We have considered the submissions on both sides and perused the records. As far as the first submission of the appellant is concerned, we do find that by OIO No. KOL/CUS/AIRPORT/ADMN/17/2016 dt.30.08.2016 issued on 31.08.2016 in another matter pertaining to the appellant, the learned Principal Commissioner of Customs, Kolkata had already revoked the license of the appellant and has also ordered forfeiture of the entire amount of security deposit furnished by their appellant. These facts have also been confirmed in Para 26 of the impugned order as reproduced above. Therefore, we find that on the day the order was passed there was no customs broker's license of the appellant in existence. There is nothing on record to show that the earlier revocation has been set aside by any higher judicial forum. We also find that the entire security deposit has already been forfeited in the earlier order and there is nothing on record to show that any higher judicial forum had set aside such forfeiture. There is no other penalty in the impugned order. We, therefore, find that the impugned order is bad in law inasmuch as the license which has been revoked is non est as it had already been revoked and the forfeited amount of security deposit also does not exist as it had already been forfeited.
8. We also find force in the argument of the appellant that after 2013, Customs Broker Licensing Regulations, 2013 have replaced the erstwhile CHALR, 2004 and therefore the earlier regulations do not exist any longer. We find that these regulations were notified by notification No. 65/2013-CUS (NT) dt.21.06.2013. The preamble part of the notification reads as follows:
(4)Appeal No. C/76938/2018 "In exercise of the powers conferred by sub-section (2) of section 146 of the Customs Act, 1962 (52 of 1962), and in supersession of the Customs House Agents Licensing Regulations 2004, except as respect things done or omitted to be done before such supersession, the Central Board of Excise and Customs hereby makes the following regulations, namely:"
9. A plain reading of the above shows that the erstwhile regulations have been completely superseded except in respect of things which were already done. We also find that there is no separate savings clause in the CBLR, 2013. Therefore, regardless of the fact that the appellant was licensed prior to the introduction of CBLR, 2013, the present proceedings, having been initiated post 2013, must be proceeded under the new regulations. CHALR, 2004 cannot be invoked as they did not exist during the relevant period.
10. In view of the above, without going into the merits of the allegations made in the show cause notice and affirmed in the impugned order, we set aside the impugned order as bad in law.
11. The impugned order is set aside and the appeal is allowed.
(Pronounced in the open court on 23 January 2020.) SD/ (P.K. CHOUDHARY) MEMBER (JUDICIAL) SD/ (P. VENKATA SUBBA RAO) MEMBER (TECHNICAL) Veda