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2017 (1) TMI 68 - AT - CustomsMaintainability of appeal - prohibition passed under Regulation 23 of the CBLR, 2013 - whether appeal before the Tribunal maintainable u/s 129A of the Customs Act, 1962? - Held that - in CHALR, 2004 the remedy of filing appeal before the Tribunal was only against the order of revocation and suspension. However, the legislature very consciously brought amended provision by way of Regulation 21 in CBLR, 2013 that any order passed under CBLR, 2013 Regulation is appealable before the Tribunal under Section 129A - this appeal is clearly maintainable against the prohibition order. Validity of prohibition order - Held that - the offence report was received on 11.03.2014. However after the lapse of more than two years there is no whisper regarding any proceeding of enquiry by the Department and the appellant is out of the job in three sections of the Mumbai Customs for more than two years. This Tribunal has been taking consistent view even in case of suspension of licence, that if the enquiry proceeding is not completed within stipulated time period of nine months, the suspension order was revoked and the CHA was allowed to operate - reliance was placed on the decision of the case of Bombay Shipping Agency Vs. Commissioner of Customs (General), Mumbai 2014 (3) TMI 317 - CESTAT MUMBAI ,where it was held that when the Department is unable to complete it s enquiry at given time of ten months, the Customs Broker should not be made suffer - the Department cannot be allowed to continue the prohibition on the appellant. Appeal allowed - decided in favor of appellant.
Issues Involved:
1. Maintainability of the appeal against the prohibition order. 2. Legality of the continuation of the prohibition order without initiation of enquiry proceedings within the stipulated time. Detailed Analysis: 1. Maintainability of the Appeal: The primary issue was whether the prohibition order passed by the Commissioner under Regulation 23 of the Customs Broker Licensing Regulations, 2013 (CBLR, 2013) is appealable before the Tribunal. The appellant argued that under Section 129A of the Customs Act, 1962, any decision or order passed by the Commissioner of Customs as an adjudicating authority is appealable before the Tribunal. The appellant cited various judgments to support the claim that the prohibition order is appealable, including Premier Shipping Agencies Vs. Commissioner of Customs [2015 (315) ELT 27 (Del.)] and Flyjac Logistics Pvt. Ltd. Vs. Commissioner of Central Excise, Customs & Service Tax, Bangalore-I [2014 (314) ELT 105 (Tri.-Bang.)]. On the other hand, the respondent contended that the appeal is not maintainable, citing judgments such as S.R. Sale & Co. Vs. CC(G), Mumbai [2013 (295) ELT 653 (Bom.)], arguing that the prohibition order is administrative and not appealable under Section 129A of the Act. The Tribunal found that there are contrary views from the Hon'ble High Courts of Bombay and Delhi. The Tribunal highlighted the distinction between Regulation 22(8) of CHALR, 2004, which limited appeals to orders of suspension or revocation, and Regulation 21 of CBLR, 2013, which allows appeals against any order passed by the Commissioner under these Regulations. The Tribunal concluded that the appeal is maintainable against the prohibition order under Regulation 21 of CBLR, 2013, aligning with the judgment of the Hon'ble Delhi High Court in Premier Shipping Agencies. 2. Continuation of the Prohibition Order: The appellant argued that the prohibition order should not continue as more than two years had passed without initiating enquiry proceedings, which should have been completed within nine months as per Regulation 20 of CBLR, 2013 and CBEC Circular No. 09/10-Cus. dated 08.04.2010. The appellant cited several Tribunal decisions where suspension orders were revoked when the enquiry was not completed within the stipulated time, including Bhushan Port World Vs. Commissioner of Customs (General), Mumbai and Bombay Shipping Agency Vs. Commissioner of Customs (General), Mumbai [2014 (299) ELT 352 (Tri.-Mumbai)]. The Tribunal noted that the offence report was received on 11.03.2014, and the prohibition order was issued on 20.03.2014, but no enquiry proceedings had been initiated even after more than two years. The Tribunal reiterated its consistent view that if the enquiry is not completed within the stipulated period of nine months, the Customs Broker should not be made to suffer. The Tribunal emphasized that the Department cannot continue the prohibition without initiating or concluding the enquiry within the stipulated time. Conclusion: The Tribunal set aside the impugned order and allowed the appeal, concluding that the prohibition order was not sustainable due to the failure to initiate and complete the enquiry proceedings within the stipulated time of nine months. The judgment was pronounced in court on 21.06.2016.
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