2015 (12) TMI 430 - AT - Customs

Penalty under Regulations 22 of Customs Brokers Licensing Regulations, 2013 - Held that - cause for which the appellant is sought to be penalised, took place on 16.11.2011 and at that point of time, CHALR 2004 were in force. A perusal of the same reveals that the said Regulations provide for suspension of license, prohibition etc. under Regulations 20/ 21 etc. It is noticed that there is no provision for imposing a penalty under CHALR 2004. The same was superseded by CBLR 2013 under which a specific provision for imposing penalty has been brought into effect vide Regulation 22, with effect from 21.6.2013. We find that the CBLR 2013 was issued in suppression of CHALR 2004 and it is specifically stated that it is made, except as respect things done or omitted to be done before such supersession. Therefore, what did not exist before promulgation of CLBR 2013, cannot be brought into existence on a date prior to such promulgation by virtue of having such a provision in the new CBLR 2013. Such provisions of CBLR 2013 can be effective only from the effective date of the notification which brought the CBLR 2013 into existence. - provisions for imposing penalty were not in existence under the provisions of CHA LR 2004. Therefore, the same cannot be brought into effect before 21.06.2013 on which date CBLR 2013 having the provisions for imposing penalty came in to effect. We find force in our findings from the decision of the Hon ble Bombay High Court in the case of Greatship (India) Limited vs. Commissioner of Service Tax, Mumbai (2015 (4) TMI 1006 - BOMBAY HIGH COURT) - impugned order cannot be sustained - Decide din favour of assessee.

Summary

Issues:
1. Applicability of penalty under Customs Brokers Licensing Regulations, 2013 (CBLR, 2013) for an offense committed before its enforcement.

Analysis:
The appellant, a Custom House Agent now known as Customs Broker, challenged a penalty of &8377; 25,000 imposed by the Commissioner of Customs under CBLR, 2013. The appellant argued that the offense occurred before the enforcement of CBLR, 2013, and under the previous CHALR, 2004, no provisions existed for imposing penalties. The appellant relied on a Bombay High Court decision to support their contention.

The Revenue's representative argued that since the inquiry against the appellant began after the enforcement of CBLR, 2013, those regulations should apply. Reference was made to a Tribunal decision in a different case, but the circumstances were not directly relevant to the issue at hand.

Upon review of the arguments, the Tribunal noted that the offense took place before the introduction of CBLR, 2013, when CHALR, 2004 was in force. CHALR, 2004 did not include provisions for penalties, unlike CBLR, 2013 which introduced Regulation 22 for penalties effective from 21.06.2013. The Tribunal emphasized that new provisions cannot apply retroactively to events predating their enforcement. Citing the Bombay High Court decision, the Tribunal highlighted the importance of legislative intent in such cases.

Consequently, the Tribunal found the penalty order unsustainable and set it aside, allowing the appeal brought by the appellant. The decision was based on the clear legal principle that provisions for penalties in CBLR, 2013 could not be applied to an offense committed before its enactment, as per the relevant regulations and judicial precedents.

This comprehensive analysis of the issues involved in the judgment highlights the legal intricacies surrounding the applicability of penalties under different customs regulations and the importance of legislative intent and effective dates in determining the enforcement of such provisions.