2017 (10) TMI 767 - HC - Customs

Maintainability of appeal - section 129A of the Customs Act,1962 - power of Commissioner of Customs to reject the application for grant of license - Held that - The law is well settled. An appeal is always a creation of a statute and unless there is a specific remedy provided in the statute by way of an appeal, a right of appeal is never available to a litigant. The Regulation of 2013 framed under subsection (1) of section 146 is a complete Code in itself which governs the powers of the Licencing Authority to grant or deny a licence under the Regulation which is contemplated by subsection 1 of section 146. In the present case, the Commissioner of Customs acted in his capacity as the Licensing Authority under the said Regulation of 2013 and not as an Adjudicating Authority as contemplated by clause (a) of subsection 1 of section 129A of the said Act. Against the said order of the Commissioner (General), an appeal was not maintainable either under section 129A or under the provisions of the Regulation of 2013. The appeal under the said Regulation of 2013 is available only to a person who has been granted a licence. Appeal dismissed - decided against appellant.

Summary

Issues:
- Maintainability of appeal under section 129A of the Customs Act, 1962 against rejection of Customs Broker License application under the Customs Broker Licensing Regulation, 2013.

Analysis:
1. The appellant challenged the order of the Customs, Excise and Service Tax Appellate Tribunal dismissing the appeal against the rejection of the Customs Broker License application. The appellant argued that the Commissioner of Customs acted as an Adjudicating Authority under the Customs Act, 1962, and the appeal was maintainable under section 129A. The appellant cited relevant regulations and previous court decisions to support the appeal's maintainability.

2. The court emphasized that the right of appeal is statutory and must be explicitly provided for in the law. The Customs Broker Licensing Regulation, 2013 was framed under section 146 of the Customs Act, which governs the licensing of customs brokers. The court highlighted the power granted to the licensing authority to decide on granting or denying licenses, making the Regulation a self-contained code for licensed customs brokers.

3. Referring to a previous Division Bench decision, the court clarified that if the regulations under section 146 do not provide for an appeal remedy, an appeal under section 129A would not be permissible. The court distinguished between the roles of the Licensing Authority and the Adjudicating Authority under the Customs Act, noting that the Commissioner of Customs acted as the Licensing Authority in this case.

4. The court rejected the appellant's argument that the appeal was maintainable under section 129A, stating that the Customs Broker Licensing Regulation, 2013 provided a remedy only to those granted a license, not to applicants whose applications were rejected. The court upheld the Appellate Tribunal's decision that no appeal was maintainable against the Commissioner's order, either under section 129A or the Regulation of 2013.

5. The court clarified that its decision did not address the merits of the Commissioner's order, leaving those issues to be examined in a companion writ petition. Ultimately, the court found no merit in the appeal and dismissed it accordingly, affirming the view taken by the Appellate Tribunal regarding the appeal's maintainability.