Custom, Excise & Service Tax Tribunal
M/S. Nimaya Logistics vs Commissioner Of Customs(General), ... on 24 August, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/86953/15 [Arising out of Orders-in-Original No. 12/2015-16 dated 30/7/2015 passed by the Commissioner of Customs (General) New Customs House, Mumbai] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) Honble Mr. Raju, 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?
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M/s. Nimaya Logistics
:
Appellant
VS
Commissioner of Customs(General), Mumbai
:
Respondent
Appearance
Shri. D.H. Nadkarni, Advocate for the Appellants
Shri. S.J. Sahu, Asstt. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Honble Mr. Raju, Member (Technical)
Date of hearing: 24/8/2016
Date of decision /2016
ORDER NO.
Per : Ramesh Nair
This appeal is directed against Orders-in-Original No. 12/2015-16 dated 30/7/2015 passed by the Commissioner of Customs (General) New Customs House, Mumbai, wherein Ld. Commissioner by exercising of powers conferred under the provisions of Regulations 19(2) of CBLR, 2013 ordered that the suspension of CB Licence No. 11/1695, ordered vide Order No. 09/2015-16 dated 2/7/2015 shall be continued pending inquiry proceedings under regulation 20 of CBLR, 2013.
2. Shri. D.H. Nadkarni, Ld. Counsel for the appellant submits that by Order No. 07/15-16 dated 2/7/2015 the license was suspended and vide impugned order dated 30/7/2015 suspension was ordered to be continued. It is his submission that after lapse of long period of more than a year even enquiry proceedings has not been initiated and the suspension of the licence continued. It is his submission that as per the Customs Broker Licence Regulation, 2013 statutory time period of maximum 9 months has been provided for completion of enquiry proceedings. In the present case even after 12 months of suspension of licence, inquiry has not been initiated therefore the suspension order of licence required to be revoked and the appellant shall be allowed to perform as a CHA. He referred to the Board Circular 9/2010 CUS dated 8/4/2010 wherein Board has clarified that overall period of 9 months have been prescribed from the date of receipt of offence report for completion of the inquiry and taking decision by the licencing authority. Since not only 9 months, even more than 12 months have been passed and no inquiry was conducted. For the failure on the part of the licencing authority suspension of licence should not be continued. In support, he placed reliance on following judgments:.
(a) Bombay Shipping Agency Vs. CC(General), Mumbai[2014 (299) ELT 352(Tri-Mumbai)
(b) Vinod Tomar Vs. C.C. New Delhi [2011(272) ELT 564(Tri- Del)]
(c) Babaji Shivram Clearing & Carriers Pvt. Ltd. Vs. UOI[2011(269) ELT 222(Bom.)]
(d) Tass Clearing Serivces Pvt. Ltd. Vs. CC, Hyderabad-II[2007(219) ELT 522(Tri Bang)]
(e) CC(General) Mumbai Vs. East and West Shipping Agency[2007(218) ELT 360(Bom)].
He submits that, in view of the above judgments of the Tribunal as well as Honble Bombay High Court it was consistently held that suspension should not be continued if the inquiry proceedings are not completed within prescribed time limit of 9 months.
3. On the other hand, Shri. S.J. Sahu Ld. Asstt. Commissioner, (A.R.) appearing on behalf of the Revenue reiterates the findings of the impugned order and submits that some time may be given to the Revenue for completion of enquiry proceedings. He placed reliance on the judgment of Honble Bombay High Court in the case of M. Dharamdas & Co. Vs. Commissioner of Customs (General)[2015(316) ELT 600(Bom.)]
4. We have carefully considered the submissions made by both sides.
5. The appellants licence has been suspended since 2/7/2015 and the same continued to remain under suspension by the impugned order dated 30/7/2015. CBLR, 2013 itself has prescribed an over all time limit of 9 months to complete the proceedings against the CHA right from the initiation of the proceedings to its final disposal. None of the time limit has been adhered to by custom authority in this case. In these circumstances it will be in the interest of equity and justice to set aside the suspension and allow the appellant to function as a CHA pending completion of inquiry by the custom authority. Accordingly we revoke suspension Order No. 07/15-16 dated 2/7/2015 and Order No. 12/15-16 dated 30/7/2015. However, Custom Authority are at liberty to continue inquiry proceedings as envisaged under CBLR, 2013. Appeal is allowed.
(Order pronounced in court on_____________ ) Raju Member (Technical) Ramesh Nair Member (Judicial) sk 5 C/86953/15