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TMI Blog2016 (11) TMI 903X X X X Extracts X X X X X X X X Extracts X X X X ..... enue loss was pointed out. even in the Show Cause Notice. We have also seen that the Respondent himself has not considered violation of the KYC norms, as serious enough to merit of suspension. The Appellant and its employees have already faced much hardship and have been deprived of their livelihood for a considerably long period since suspension of their Courier registration since 25.9.2014 - no reasonable justification found to subject the appellants to any further punishment for minor lapses, if any, extending benefit of doubt. Revocation of the Courier Registration set aside - forfeiture of security at the time of registration of the courier License of ₹ 10 lakhs set aside - The Courier Registration of the Appellant stands restored with security deposit forthwith with consequential relief - appeal allowed - decided in favor of appellant. - Appeal No. C/87630/15 - Order No.A/86736/16/CB - Dated:- 23-3-2016 - Mr. M.V. Ravindran, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri Atul Nanda, Sr. Advocate with Shri Sanjay Agarwal, Advocate, for Appellant Shri M.K. Sarangi, Dy. Commr (AR), for Respondent Per: M.V. Ravindran The instant app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorization /KYC/POD records for import in electronic form. Therefore they violated regulation 13(a) and 13 (j) read with Circular No. 33/2010-Cus dt. 07.09.2010, (iv) A case of alleged mis-declaration and undervaluation resorted to by M/s. Smashing Traders Private Limited vide Bill of Entry No. 33943 dt. 13.09.2014 filed by the Appellants was referred which was under investigations. 2.4 An ex-parte Suspension Order cum Show Cause Notice bearing F. No. Air Cus/50/CIC/199/07 dated 25.09.2014 was issued by the Respondent Commissioner suspending the registration granted to the Appellants, pending the completion of inquiry, wherein the Appellants were also called upon to show cause within 30 days of issue of the Suspension Order as to why the license granted under Regulation 10 of the Courier Imports Exports (Clearance) Regulations 1998 (as amended) to the Appellants should not be revoked. The Respondent was satisfied regarding necessity of inquiry before revocation of the license, and hence, pending the completion of such inquiry, the license was suspended. 2.5 The Appellants while denying the allegations, preferred a Writ Petition (L) no. 2680 of 2014 against this susp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s contended that the Appeal was erroneously filed before a wrong forum under bonafide mistaken belief that the Appeal was maintainable before the Chief Commissioner. It is further claimed that personal hearings were also availed in which the said error on the issue of maintainability was neither noticed by the Appellant nor pointed out by the Office of the Chief Commissioner. 2.12 An application for condonation of delay was filed. After hearing both the sides, the delay was condoned by this Tribunal vide Order dated 6.1.2016, wherein it was also observed that the appeal was maintainable. 2.13 The Appellant, in the meantime, had requested the Chief Commissioner of Customs to consider the Appeal as a representation, vide their letter dated 07.01.2016, and had sought a personal hearing for presenting its case and to urge additional grounds in support of the said representation (erroneously filed as an Appeal before the Chief Commissioner of Customs). During the pendency of the above Appeal and after receipt of the said request dated C7.01.2016, the Principal Commissioner of Customs, acting as Chief Commissioner of Customs, Mumbai Zone-III, vide Order dated 21.01.2016, rejected t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdinary and discretionary writ jurisdiction against suspension of courier licence. In Bombino Express Pvt. Ltd. (supra) , the Hon'ble Delhi High Court dismissed their writ petition, without deciding any such issue of 'maintainability', as the same was neither raised, nor was under consideration of the Hon'ble Delhi High Court. In the matter of Transit Freight Forwarders (supra) , the Hon'ble Kerala High Court was not inclined to exercise their extraordinary writ jurisdiction under Article 226 of the Constitution of India, and found it fit and proper to relegate the Petitioner therein to avail remedy suggested by the Counsel appearing for the Petitioner therein, as provided under Regulation 14(2). Therefore, even the said order dated 10.04.2013 is not an authority on the issue of maintainability of the instant appeal. All the other judgments / orders of the Tribunal and of the Hon'ble Bombay High Court were in the context of Customs House Agents Licensing Regulation, in the context of Orders issued under Section 146 of the Customs Act, 1962. None of them involved the issue of maintainability of appeal against an order passed by the Commissioner of Customs a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Order is an appealable order in view of the clear language of Section 129A read with the definition of the words Adjudicating Authority as contained under Section 2(1), which permits any person to file appeal before the Tribunal, if aggrieved by any decision or order passed by the Commissioner of Customs as an Adjudicating Authority. Since 'the impugned Order is passed by Commissioner of Customs as an adjudicating authority, under the provisions of Customs Act, 1962 and Regulations framed thereunder, the same is appealable order. Moreover, vide our earlier Order dated 06.01.2016 in Application C/COD/95496/15 in this Appeal we had already observed as follows - 6. We have to decide whether an appeal lies before this Tribunal or otherwise. On plain reading of Section 129A of the Customs Act, 1962, we find that as the order has been passed by the Commissioner of Customs as an adjudicating authority, this appeal lies before this Tribunal. The adjudicating authority is also defined under Section 2(1) of the Customs Act, 1962 which means an authority competent to pass any order or decision under this Act. It is very clear from the reading of the regulations that they ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, 1962, much less after adjudication thereof. Moreover, although Section 138B (2) of the Customs Act, 1962 itself provides for examination of witness before considering any statement as relevant even in any adjudication proceedings, however, no witness was examined before the Respondent in the instant case under the Courier Regulations. The statements were mechanically considered as relevant without conducting any inquiry under the Regulations and without examining the witnesses. 10. The appellants have invited our attention to the express provisions contained in Regulation 13A of the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010- Procedure for revoking registration under Regulation 13 , The Appellants also contended before us that they have been granted a 'User ID' for the purpose of electronic filing, and submitted that conditions and requirements contained in the Courier Imports and Exports (Electronic Declaration and Processing) Regulations, 2010 are also made applicable as clarified by Board to Authorized Courier registered under the Courier Imports and Exports (Clearance) Regulations, 1998 vide Board Circular No.33/2010-Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hough there is considerable merit in this submission, we do not find it necessary to go into the issue whether the Respondent was required to follow the procedure prescribed under this Regulation 13A under 2010 Courier Regulations for Electronic Mode or the procedure under 1998 Courier Regulations for Manual Mode. This is because the Respondent has failed to show any inquiry conducted and completed pursuant to the directions of the Hon'ble High Court and neither any Inquiry Report has been furnished to the Appellant, nor could the Respondent produce any such report before us. 12. In view of the above reasons, we also do not find it necessary to give detailed findings of facts on the issues relating to the alleged break bulk activities concerning M/s. Smashing, and the deliveries of the segregated cargo with invoices put in the packages. Suffice it to say that these findings are entered without examining the witnesses, and conducting any inquiry though contemplated under either of the two Courier Regulations. If findings of facts are entered now, the same may prejudice the case of either party in the adjudication proceedings under section 28 read with section 124, subsequent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll be treated as incomplete and it was stipulated that - no clearance will be effected after 15.08.2014 if the above provision is not complied with. A reading of this Office Note shows that even from the date of this Office Note i.e. on 28.07.2014, clearances were permitted to be made till 15.08.2014 by the Office of Respondent without signature and details of qualified person. In these circumstances, the action of revocation on this ground would be harsh. 16. We have also considered that the Appellant and its employees have already faced much hardship and have been deprived of their livelihood for a considerably long period since suspension of their Courier registration since 25.9.2014. In Falcon Air Cargo and Travels (P) Ltd. Vs Union of India, 2002 (140) E.L.T. 8 (Del.), the Hon'ble Delhi High Court was pleased to observe that- 13 Though we have not dealt with the question of proportionality, it is to be noted that the authorities while dealing with the consequences of any action which may give rise to action for suspension, revocation or non-renewal have to keep several aspects in mind. Primarily, the effect of the action vis-a-vis right to carry on trade or pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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