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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 ..... ion of security which becomes not available for any reasons has to be under new CBLR 2013 only. In fact if the Commissioner was to specifically order that appellant has to provide security deposit of ₹ 5 lakhs in the order itself in accordance with new CHALR 2013, it would have been difficult to contest the same. Just because the Commissioner did not mention it in the order, if the legal position requires the appellant to deposit the amount, which is the situation in this case, the revised security is to be deposited - There is no estoppel in 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 ₹ 4.25 lakhs for allowing him to continue his activity as a CHA. - 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 - Decided against the appellant. - C/28578/2013-DB - Final Order No. 20373/2014 - Dated:- 10-3-2014 - SHRI B.S.V. MURTHY AND SHRI S.K. MOHANTY, JJ. For the Appellant : Mr. M.A. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Customs Broker, which was valid up to 24.10.2021, was restored by taking a security of ₹ 75,000/- submitted by them. 4.1. The Central Board of Excise and Customs vide letter F. No. 502/07/2013-Cus. VI dated 06.09.2013, had clarified that, in terms of Regulation 8 of CBLR, 2013, a Customs Broker is required to furnish Security of ₹ 5 lakhs for issuance of suspended Customs Broker License. 4.2. Based on the clarification issued by the Board, the appellant was directed to deposit the balance amount of ₹ 4, 25,000/- as additional security by letter dated 20.09.2013. The appellant once again represented that the provisions of Regulation 8 are applicable only in respect of licence issued under Regulation 7 of the CBLR 2013 and in their case licence was issued under the provisions of CHALR 2004. Since it was only a suspension for a specified period and thereafter the licence continued, CHALR 2004 would be applicable and not CBLR 2013. Further he also relied upon a clarification issued by the Board under Circular No. 42/2004 dated 10.06.2004 wherein Board had clarified in point No. 5 under the heading Regulation 9 and point No. 1 under Regulation 10, the revis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not be taken as per CHALR 2004. However, it was submitted by the learned AR that the clarification issued by the Board on 06.09.2013 was with reference to the specific case of the appellant and this was followed up by issue of public notices by the Bangalore Commissioner on 20.01.2014 wherein procedure for renewal of Customs Broker Licence was prescribed. Therefore he submits that the submission of the appellant that the clarifications issued in 2004 should be preferred to the subsequent clarification and public notice is not correct. The learned AR also relied upon the decision of the Hon ble High Court of Bombay in the case of Shri Venkatesh Shipping Services Pvt. Ltd. Vs. Union of India [2013 (287) E.L.T. 266 (Bom.)]. He submits that in that case the Hon ble High Court of Bombay had treated the revocation of licence for the period from 19.03.2008 to 30.09.2012 as suspension and ordered the revocation of the same subject to the condition that the appellant therein deposited the security deposit as per the present rules and regulations with the proper officer. We find considerable force in the arguments advanced by the learned AR for the following reasons: a) Even th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd dealt with. 6.3. The second submission was that there was no renewal of the licence in this case and it is also in the ground of fresh licence. Only in the case where a fresh licence is granted or a licence comes up for renewal, the question of execution of a fresh bond and provision of fresh security would arise. 6.4. For better appreciation we reproduce Regulations 7, 8 and 9 which are as under: 7 Grant of licence. - (1) The Commissioner of Customs shall, on payment of fee of five thousand rupees grant licence in Form B to an applicant who has passed the oral examination within two months of the date of declaration of the said results. (2) The applicant who has been granted licence under sub- regulation (1) shall be eligible to work as Customs Broker in all Customs Stations subject to intimation in Form C to the Commissioner of Customs of the Customs Station where he intends to transact business. A copy of this intimation shall also be sent to the Commissioner of Customs who has issued the licence in Form B. 8. Execution of bond and furnishing of security.- (1) Before granting the licence under regulation 7, the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulation 7 to 9, we find that whether it is the case of renewal or the case of the appellant, there is no specific provision to provide that a security has to be taken in terms of the individual regulation except in the case of grant of a new licence. However if we take a view that appellant or any CHA whose security becomes non-existence for any reason or bank guarantee expires, there will be no security at all. Obviously the regulation requires the security to be available at all times with the Government. This is the only interpretation which would ensure that the regulations are interpreted in letter and spirit. Therefore where the security becomes non-available for any purpose, it becomes necessary for the Commissioner to obtain fresh security. Having come to this conclusion, we have to examine on what basis the Commissioner could fix fresh security amount. 6.6. It was submitted by the learned counsel that even though CHALR has been superseded, as per the provisions of Section 159A of Customs Act 1962, effect of amendment, repealment, supersession or rescinding of any rule, regulation, notification or order so amended or issued under this Act would not affect any right, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6.8. In fact if the Commissioner was to specifically order that appellant has to provide security deposit of ₹ 5 lakhs in the order itself in accordance with new CHALR 2013, it would have been difficult to contest the same. Just because the Commissioner did not mention it in the order, if the legal position requires the appellant to deposit the amount, which is the situation in this case, the revised security is to be deposited. We recall the fact that Hon ble High Court of Bombay had held in the case of mandatory penalty under Section 11AC of Central Excise Act 1944 that option to pay 25% of the duty demanded within one month need not be specifically mentioned and even if it is not mentioned in the order-in-original, it is the responsibility of the assessee to ensure that the payment is made within 30 days and if such option is not mentioned in the order also and if the assessee did not pay the amount within one month as specified under Section 11AC of Central Excise Act, no appellate authority can subsequently take a view that in the absence of option, a fresh opportunity can be given by the appellate authority. This is a contrary view taken by the Hon ble High Court of Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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