2018 (5) TMI 2043 - AT - Customs

CHA license - Seeking enhancement of the detriment to final revocation of licence itself - Commissioner of Customs (General), New Custom House, Mumbai restricted the detriment to forfeiture of security amount deposited by the custom house agent at the time of obtention of licence and directed operationalising of the licence contingent upon depositing fresh security amount - HELD THAT - The enactment of Customs Act, 1962, intended to consolidate and amend the various laws related to customs, is in pursuance of the constitutional authority vested in Parliament to legislate on duties of customs including export duties in serial no. 83 of List I in Seventh Schedule to the Constitution of India. Almost, in its entirety, it consists of the manner of, and authority to, collect taxes for which specific mandates on goods, conveyances, as well as land and sea frontiers, are coupled with penal - confiscatory, fiscal and criminal -consequences for enforcing such authority. Within this scheme, the institution of custom brokers has been incorporated in section 146 of Customs Act, 1962, even though it could have had a separate legislate existence, owing to synergy and convenience. A close parallel can be seen in the framework of disciplinary proceedings that govern detriment to terms and conditions of service. The designated disciplinary authority may impose stipulated penalties, including dismissal, removal or retirement from office, in accordance with the procedure prescribed which may be appealed against by the employee. There is no provision within that framework for the disciplinary, or any higher, authority to appeal for enhancement and the employer is competent to seek judicial redressal for the limited purpose of enforcing the penalty imposed by the disciplinary/appellate authority. In like manner, it is inconceivable that an authority that is administratively superior to the licensing authority should be empowered to direct the licensing authority to seek retraction of its own order. An order issued under the Customs Broker Licencing Regulations, 2018 (or any predecessor Regulations) is not an adjudication order and, save as provided in the Regulations and subject to section 146(2)(f) creating specific jurisdiction, no appeal can lie to the Tribunal. As the impugned Regulations, circumscribed, as they are, by the limited scope of section 146(2)(f) of Customs Act, 1962, do not provide for an appeal against dropping of proceedings thereunder, the general provisions for appeal being applicable only to adjudication orders, with the special law prevailing over the general law and there being no demonstration of legislative intent, explicit or otherwise, or need for such to allow appeals by the licensing authorities against their own orders - Appeal dismissed.

Summary

Issues Involved:
1. Maintainability of the appeal by the licensing authority against its own decision.
2. Applicability of general provisions for filing appeals under Section 129 of the Customs Act, 1962.
3. Precedent decisions and their binding nature.
4. Special provisions under the Customs House Agents Licensing Regulations (CHALR) versus general law.
5. Authority and oversight of the licensing authority.

Issue-wise Detailed Analysis:

1. Maintainability of the Appeal by the Licensing Authority:
The primary issue was whether the licensing authority could appeal against its own decision. The Tribunal noted that precedent decisions, such as in the case of Mukadam Freight Systems Pvt Ltd, held that none of the Regulations envisaged appeals by the licensing authority against its own decision. This precedent was consistently followed by different benches of the Tribunal, which concluded that the Customs Broker Licensing Regulations (CBLR), 2013 did not provide for an appeal by the Revenue against the order of the licensing authority.

2. Applicability of General Provisions for Filing Appeals Under Section 129 of the Customs Act, 1962:
The learned Authorized Representative argued that the general provisions in Section 129 for filing appeals were overlooked in precedent judgments. However, the Tribunal found that the special provisions under the CHALR, 1984, and its successors, were intended to be distinct from the general provisions of the Customs Act, 1962. The Tribunal emphasized that the legislative intent was clear in empowering a separate appellate mechanism within the Regulations, distinct from the general appellate provisions of the Customs Act.

3. Precedent Decisions and Their Binding Nature:
The Tribunal cited several precedent decisions, including Commissioner of Customs (General), Mumbai v. Mukadam Freight Systems Pvt Ltd, which were followed by various benches. The Tribunal observed that these precedents categorically laid down that the CBLR, 2013 did not provide for an appeal by the Revenue. The Tribunal also noted that conflicting decisions among coordinate benches should be referred to a Larger Bench, but this plea was categorically rejected in previous cases.

4. Special Provisions Under CHALR Versus General Law:
The Tribunal examined the special place occupied by 'customs brokers' within the Customs Act, 1962. The CHALR provided a comprehensive and self-sustaining framework for licensing, operation, and termination of customs brokers. The Tribunal reiterated that special law prevails over general law, as held by the Hon'ble Supreme Court in Commercial Tax Officer v. Binani Cements Ltd. The Tribunal concluded that the absence of a specific appellate provision for the Revenue within the CHALR indicated a deliberate legislative intent to limit appeals to the licensee only.

5. Authority and Oversight of the Licensing Authority:
The Tribunal found no justifiable reason for the licensing authority to appeal against its own decision. The Commissioner of Customs, being the highest adjudicating authority under the Customs Act, 1962, was vested with the authority to license customs brokers. The Tribunal emphasized that the Regulations did not contemplate an appeal by the licensing authority, and any provision to that effect would be a colorable exercise of delegated legislation.

Conclusion:
The Tribunal concluded that the appeal by the Revenue was not maintainable and dismissed it. The cross-objection was also disposed of. The Tribunal's decision was based on the consistent application of precedent decisions and the clear legislative intent to provide a distinct appellate mechanism within the CHALR, separate from the general provisions of the Customs Act, 1962.