Custom, Excise & Service Tax Tribunal
M/S. J.M. Baxi & Company vs Commissioner Of Customs, Jamnagar ... on 10 November, 2015
CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL, West Zonal Bench, Ahmedabad Appeal No. : C/11286/2015 (Arising out of OIO-02/2015 dated 29.05.2015, passed by Commissioner of Customs, Jamnagar) M/s. J.M. Baxi & Company : Appellant (s) VERSUS Commissioner of Customs, Jamnagar (Prev.) : Respondent (s)
Represented by :
For Appellant (s) : Shri Hardik Modh, Advocate For Respondent (s) : Shri Sameer Chitkara, Authorised Representative For approval and signature :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical) 1 Whether Press Reporter may be allowed to see the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982? No 2 Whether it should be released under Rule 27 of CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not? YES 3 Whether their Lordships wish to see the fair copy of the Order?
Seen 4 Whether Order is to be circulated to the Departmental authorities? Yes CORAM :
Mr. P.K. Das, Hon'ble Member (Judicial) Mr. P.M. Saleem, Hon'ble Member (Technical) Date of Hearing / Decision : 10.11.2015 ORDER No. A/11623/2015 Dated 10.11.2015 Per : Mr. P.M. Saleem The appellant herein is before us aggrieved by the order of Prohibition issued by Commissioner of Customs (Prev.), Jamnagar, vide the impugned order No. 02/2015 dated 29.05.2015. By this order, the Commissioner prohibited the appellant, who is a Customs Broker from working, in the Customs Station under the provisions of Regulation 23 of Customs Brokers Licensing Regulations, 2013 (hereinafter referred to as CBLR 2013 for short).
2. Heard both sides. The learned Authorised Representative (Additional Commissioner) for Revenue raises a preliminary objection on jurisdiction of CESTAT to hear the matter. He argues that CESTAT has no authority to hear the appeals pertaining to Prohibition of Customs Brokers. Learned Authorised Representative relied upon the decision of the Tribunal in the case of S.N.M. vs. Commissioner of Customs (General), Mumbai 2014 (304) ELT 255 (Tri. Mum.). On the other hand, learned Counsel for the appellant take us to the provisions of CBLR 2013 and points out Regulation 21, which reads as follows:-
21. Appeal by Customs Broker. A Customs Broker, who is aggrieved by any order passed by the Commissioner of Customs under these regulations, 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. He also relied upon the decision of the Hon'ble Delhi High Court on same issue in the case of Premier Shipping Agencies vs. Commissioner of Customs 2015 (315) ELT 27 (Del.). Para 8 of the said decision is reproduced below for better appreciation:-
8.?In my view, the view expressed by CESTAT, Mumbai in S.N.M. Agency (supra) is clearly erroneous. The learned counsel for the respondent also contends that the appeal against orders of Commissioner of Customs are being entertained and the decision of CESTAT, Mumbai in S.N.M. Agency (supra) is not being followed.
3. On perusal of the provisions of Regulations 2013 (supra) and the decision of the Hon'ble Delhi High Court (supra), which overruled the decision of the CESTAT in the case of S N M Agencies, we hold that the Tribunal has the authority to hear the appeals relating to Regulations 2013 (supra), as laid down by Regulation 21 (supra). Therefore, the preliminary objection raised by the learned Authorised Representative is rejected. Consequently we take up the appeal for disposal.
4. On perusal of the records, it is seen that the Commissioner in the Prohibition Order, states as follows:-
I find that this vessel was specially designed to support the platform installations in emergencies and perform various functions such as fire and / or other natural calamities. This offshore support vessel is subjected to duty. The sole purpose of this vessel is not just Supply i.e. carrying of goods, but support i.e. multi functional activities such as fire fighting, rescue operations for platform installations, perform surveys and pollution control etc. Hence, it is clear that the purpose of importing the vessel Greatship Dhwani is to carry out multi tasks, which could be rightly classified under CTH 8905.90.90 and not under CTH 8901.9000. The above cited judgments are not relevant to this case.
Further, regarding violation of Regulation 13(d) and (e) of Customs House Agents Licensing Regulations, 2004 (now Regulation 11(d) and (e) of Customs Brokers Licensing Regulations, 2013), I find in the instant case that the Customs Broker, engaged in the customs work failed to advise the said party about the correct classification of goods imported by them. Also CHA fails to advise the said party to comply with the provisions of the Act. In case of non-compliance, the CHA shall bring the matter to the notice of the department. As per the Regulation 13(d) and (e) of Customs House Agents Licensing Regulations, 2004 (now Regulation 11(d) and (e() of Customs Brokers Licensing Regulations, 2013), a Custom House Agents shall 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 and he shall 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. As mentioned above, the CHA failed not only to guide the party to classify the goods correctly but also failed to bring the matter to the notice of the department. For the acts omission and commission on the part of CHA, they rendered themselves liable action under CHALR, 2004 for violation of Regulation 13(d) and (e) of Customs House Agents Licensing Regulations, 2004 (now Regulation 11(d) and (e) of Customs Brokers Licensing Regulations, 2013).
5. Thus, it is observed that the learned Commissioner had prohibited the appellant from working as Customs Broker on the ground that the Importer had not correctly classified the goods imported by them and the appellant had not properly advised in this regard. This is the only allegation against the appellant.
6. The root cause for the said allegation is import of a vessel for which Bill of Entry No. 698 of 2009-10 dated 09.03.2010 was filed. It is observed that the said Bill of Entry was provisionally assessed at the time of importation. The goods were also examined by the Customs Officers before the same was cleared out of customs charge. The examination report signed by Customs Officers including Deputy Commissioner of Customs, at the reverse on the said Bill of Entry, reads as follows:-
CH. Pipavav./Port Anchorage / 11.03.10 Inspected and examined vessel as PSV-GREATSHIP Dhwani Norway. Yr. of 2008, SMO No. 9392846. Type Platform supply vessel, including machinery. Ship stores, provision store etc. wrt. B/E No. F.698/09-10 Dt. 09.03.10. Invoice No. GSY. 04.0226023 Dt, 09.02.10, also checked description as declared in B/E. The Bunker store verified with surveyor M/s. Sisma Munic Surveyor, Pipavav. Representative sample of memo drawn in presence of Chief Eng., Surveyor for etc. The examination carried out in presence of Importer/CHA and under supervision of DC and Superintendent (Ex.) Subsequently, the said Bill of Entry was finally assessed as seen vide letter F.No. B/E No. F/698/09-10 dated 25.5.2010 of Superintendent of Customs. However, subsequently the Customs authorities reopened the issue believing the said classification of the vessel to be incorrect and therefore, issued a show cause notice to the importer and the Appellant among others vide F. No. VIII/10-82/Commr/O&A/2015 dated 02.03.2015. It is observed that the said show cause notice is issued after almost five years since the goods were examined and cleared out of customs charge.
7. The Prohibition Order (supra) is issued alleging that the importer had not properly classified the said goods and the appellant had not advised them properly. When the Customs officers had initially assessed the Bill of Entry provisionally and had examined the goods, and also subsequently finalised the assessment, the appellant cannot be penalised, that too by a Prohibition from working in the Customs Station which is a stringent measure, on the mere ground that they have not advised their client properly.
8. In view of the above analysis, we find that there is no justification for the Commissioner to prohibit the appellant from their work under the provisions of Regulation 23 of the Customs Brokers Licensing Regulations, 2013 (supra). We therefore, set-aside the impugned order of the Commissioner.
Appeal is allowed.
(Dictated and pronounced in the Court)
(P.K. Das) (P.M. Saleem)
Member (Judicial) Member (Technical)
..KL
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