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TMI Blog2015 (8) TMI 489X X X X Extracts X X X X X X X X Extracts X X X X ..... ations 5 and 9(2) as well as the Public Notice No.2/2014 (CUS) which were duly provided by the respondent along with the application forms. After filing of the application by the respondent, certain information was gathered by the appellant from the Customs Office of the various ports in the Country and on the basis of such information received, a notice dated 08.04.2014 was issued to the respondent to show cause as to why the request for renewal of licence be not rejected. In response to the same, reply dated 16.04.2014 was submitted by the respondent. After considering the documents submitted and hearing the parties, vide order dated 28.04.2014 the Commissioner of Customs, Bengaluru rejected the application for renewal of the licence of respondent. Challenging the said order, respondent filed an appeal before the Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Bengaluru, which has been allowed by the Tribunal vide its order dated 23.05.2014. Aggrieved by the same, Commissioner of Customs and Service Tax has filed this appeal. 3. Though the appeal was admitted on 12.08.2014 but no question of law was framed at that stage. However, learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me had been suppressed. 6. The submission of Sri G Rajagopalan, learned Addl. Solicitor General of India primarily is that, it was the duty of the respondent to have furnished the requisite information with regard to the pendency of the criminal case, which was not relating to any other activity but with regard to the activity as a Customs Broker, and such being the position, it could not be said that the respondent - applicant did not have knowledge of the pendency of the criminal case. It has also been submitted that under Regulation 9(2) of the Regulations of 2013, there being a complaint of misconduct against the respondent with regard to the conduct of the operation of his licence, the rejection of the renewal of licence in the case of the respondent was perfectly justified and the Tribunal has wrongly directed for renewal of the same without considering these factual aspects. 7. Per contra, learned counsel for the respondent has submitted that all requisite information was provided by the applicant while submitting the application for renewal of licence and the declaration given by the respondent was absolutely correct as it was provided in the said declaration that there w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9;s Circular No.28/2012 - Customs dated 16.11.2012, shall not require renewal till such time the said authorization is valid. (2) The Commissioner of Customs may, on an application made by the licencee 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 licencee is found to be satisfactory with reference, inter alia, to the obligations specified in this regulation including the absence of instances of any complaint of misconduct. (3) The fee for renewal of a licence shall be five thousand rupees." 11. In pursuance of Regulation 9, a Public Notice No.2/2014 (CUS) dated 20.01.2014 was issued indicating the procedure to be adopted for renewal of Customs Broker Licence. Under the said notice 16 conditions have been prescribed. Relevant extract of paragraphs 2 and 3 are reproduced below: 2) "The application for the renewal of Customs Broker Licence, which is due for renewal, shall be submitted to this office, at least 90 days prior to the due date of expiry, along with the following documents:- (i) Application in Form A as per CBLR, 2013 duly signed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iness of Custom Clearance Agent since the year 1999 and has been operating in atleast 12 ports in the Country and thus, it cannot be said that he was required to give declaration only with regard to pendency of any criminal case against it in Bengaluru and not anywhere else. Even otherwise, if we look at it from the point of view of respondent and accept the submission of learned counsel for the respondent, then, it will have to be necessarily held that it was a very clever way of circumventing the making of a full and proper declaration by stating that there was no judicial or quasi judicial case pending against it in Bengaluru (even though a criminal case relating to offence with regard to its working as Customs Broker was pending at Kolkata) and yet very wisely concealing the information of pendency of a criminal proceeding against it in a Court of law and thereby not furnishing a declaration as required under Regulation 5(d) of the Regulations of 2013. This clearly amounts to suppression of material information required to be furnished by the respondent at the time of making a declaration and filing the application and would be sufficient reason for rejecting the application fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here is no agreement between the partners. The private respondent being the other partners, might apply for independent licence. The writ application is disposed of by directing the concerned respondents to cancel the licence of the partnership firm. The cancellation of the licence will not, however, prevent the other partner from applying for fresh licence, if he is otherwise eligible." This order was carried in appeal before the Division Bench which came to be disposed of by holding as under: "We, thus, find that in the facts of the present case, the ultimate conclusion arrived at by the learned Single Judge was correct. We, therefore, dispose of the appeal by maintaining the order passed by the learned Judge. We make it clear that we have, otherwise, not gone into the dispute and only because, one of the partners of the licensee is not willing to act as such licensee along with the other partner, we direct the Customs Authority to terminate the licence only on that ground. Both the parties are at liberty to apply for fresh licence either in their own names or as a partner of other firm, if they constitute any such firm. The appeal is, thus, disposed of to the extent indicat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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