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TMI Blog2014 (8) TMI 174X X X X Extracts X X X X X X X X Extracts X X X X ..... 75,000/- furnished by the said Customs Broker at the time of obtaining/renewing their License. 2. While the above matter was pending adjudication, the Central Board of Excise and Customs, vide Notification No. 65/2013 Customs-N.T. dated 21.06.2013, in supersession of the provisions of the erstwhile Customs House Agent Licensing Regulations, 2004, notified the Customs Brokers Licensing Regulations, 2013 (hereinafter referred to as the CBLR, 2013). As per Regulation 8 of the DBLR, 2013, an applicant for a Customs Broker License is required to furnish Security in the form of either Bank Guarantee/Postal Security/National Savings Certificate for an amount of Rs. 5, 00,000/- for carrying out business as a Customs Broker. 3. The said Customs Broker accepted the penalty imposed vide OIO No. 13/2013 dated 28.06.2013 and on completion of the suspension period of one month, made a request seeking restoration of the License and submitted a fresh Security deposit for an amount of Rs. 75,000/-. Since the provisions of CHALR, 2004, under which the original license was issued, had been superseded by the CBLR, 2013, notified under Notification No. 65/2013 Customs N.T. dated 21.06.2013, a refere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be appropriate to interfere at this interim stage. However because of arguments advanced by the learned counsel and because of peculiar circumstances in this case and also because of the fact that basically the issue involved is a legal one and as far as the findings part is concerned, the impugned order ordering suspension for one month and forfeiture of security deposit, the appellant can be said to have suffered the punishment for that offence. 6. The issues raised by the learned counsel are discussed and considered one by one. 6.1. The first submission was that the Commissioner has relied upon the classification issued by the Board on 06.09.2013 which is basically a correspondence between the Commissioner and the Board and cannot be said to be in public domain. As submitted before the Commissioner, the Boards Circular dated 10.06.2004 has to be preferred to the internal correspondence. Moreover the Boards circular specifically covers the appellants case and therefore the benefit should be allowed. In the Boards circular, the appellants are relying on two clarifications issued by the Board. The first clarification was issued with reference to Regulation No. 9 and Board cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rejudiced by the clarification issued by the Board. b) Coming to the clarification issued by the Board it has been relied upon by the appellant, we consider that in view of our observations above, this also has to be ignored. c) We find that the case under consideration by the Hon'ble High Court of Bombay is appropriate and applicable to the facts of this case. In that case the Hon'ble High Court had considered the CHA regulations in detail and modified the order of revocation to one of suspension and directed the appellant to deposit fresh security. In the case before us also, the Commissioner's order prescribed a period of suspension and forfeited the security deposit. The consequences of the order of the Hon'ble High Court of Bombay as well as the order of the Commissioner are same. The conclusion is that after the decision of the High Court of Bombay as well as the decision of the Commissioner, the appellants will have to provide security afresh since in both the case security had been forfeited and is not available with the Government. Hon'ble High Court of Bom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p; (1) A licence granted under regulation 7 shall be valid for a period of ten years from the date of issue and shall be renewed from time to time in accordance with the procedure specified in sub-regulation (2): Provided that a licence granted to a Customs Broker, authorised under the Authorised Economic Operator Programme referred to in Boards Circular No. 28/2012-Customs dated 16.11.2012, shall not require renewal till such time the said authorisation is valid. (2) The Commissioner of Customs may, on an application made by the licensee before the expiry of the validity of the licence under sub-regulation (1), renew the licence for a further period of ten years from the date of expiration, if the performance of the licensee is found to be satisfactory with reference, inter alia, to the obligations specified in this regulation including the absence of instances of any complaints of misconduct. (3) The fee for renewal of a licence shall be five thousand rupees. 6.5. Under regulation 7 the Commissioner has been empowered to issue or grant a fresh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be forfeited. Therefore fixing of the security deposit afresh under CBLR 2013 is not correct. 6.7. The result of the Commissioner's order is that the CHA would be entitled to perform CHA service after the period of suspension is over. However as already observed by us above, the security provided by the CHA has to be available with Government when the CHA is performing his obligation since the bank guarantee or security deposit is related with the activity of the appellant as a CHA. Therefore if no security is available because it has been forfeited in this case, Commissioner has to determine the amount of security payable. For determination he has to refer to the regulation. When he has to refer to the regulations, the only regulations available would be CBLR 2013. While renewal of a licence issued under the old CHALR and continuation of a person as a CHA under CBLR 2013 would be automatic even if no fresh licence is granted under CBLR (this is in view of the provisions of Section 159A of Customs Act 1962), the determination of security which becomes not available for any reasons has to be under new CBLR 2013 only. It cannot be said that he acquired the right or privilege ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law. Therefore in whatever manner we look at the issue, we cannot find fault with the view taken by the Commissioner that appellant has to deposit an additional amount of Rs. 4.25 lakhs for allowing him to continue his activity as a CHA. 6.9. Another submission was made that for mere non-furnishing of the additional security suspension under regulation 19 is not warranted. When statute fixes a specific amount as a security deposit, not providing such security deposit on the ground that would not prejudice the department cannot be accepted. What can be examined is whether security deposit is required to be made in accordance with regulation or not. We cannot go into the question whether the Customs Department is prejudiced by such non-deposit. We are unable to consider this submission at all. Whatever reason Commissioner adopted for rejecting the submission, in our opinion is not relevant and we need not go into it. 7. Under these circumstances the ground taken by the appellant that requirement of additional security deposit has to be held as incorrect and suspension to be held as incorrect and therefore the suspension has to be revoked cannot be accepted. We are making it clear ..... X X X X Extracts X X X X X X X X Extracts X X X X
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