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TMI Blog2018 (8) TMI 503X X X X Extracts X X X X X X X X Extracts X X X X ..... nted to them to be heard in their defence. According to Learned Consultant for appellant, the satisfaction of the Commissioner of Customs is not evident in the order issued to their detriment which alone should suffice to revoke the prohibition. 2. At this stage, Learned Authorized Representative questioned the maintainability of this appeal before the Tribunal and posited three pillars to support this contention. According to her, the impugned order is administrative in nature and, hence, beyond the scope of section 129A of Customs Act, 1962 which, in the context of Commissioner of Customs, is limited to adjudication orders; that the appellate mechanism envisaged in regulation 19 of Customs Broker Licencing Regulations, 2018 is limited to orders of suspension and revocation of licences; that writ remedy alone is available to the broker who is aggrieved by an order of prohibition. 3. Thereupon Learned Consultant for appellant drew attention to a recent decision of the Tribunal in Eastern Clearing and Forwarding Agency Pvt Ltd v. Commissioner of Customs (General) [final order no. A/86472/2018 dated 23rd May 2018 in appeal no. C/85612/18] directing that the order of prohibition be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stands, appellants/respondents fail, on occasion, to appreciate the spirit behind our decisions made in the light of day and in the public eye. On occasions such as this, it behoves us to respond to the prayer of Ajax. We will, therefore, proceed to scrutinize the legal provisions. 6. Customs Act, 1962, as the successor to the erstwhile statutes governing import and export by sea, land and air, not only consolidates these but is, above all, an enactment in pursuance of the conferment of powers by the Constitution on Parliament to levy and collect duties of customs. In the elaborate scheme erected to further that end in relation to goods, section 146 of Customs Act, 1962 is a niche provision for governance of an institution established to facilitate trade. This, therefore, is undoubtedly a special law for a special purpose that is distinct from the rest of the statute. 7. In Commercial Tax Officer v. Binani Cements Ltd [(2014) 8 SCC 319], the Hon'ble Supreme Court has held that '27. ......Alternatively, it can be said that where a Statute contains both a General Provision as well as specific provision, the later must prevail. xxxx 29. It is well established that when a gen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugh regulation 19 of Customs Broker Licencing Regulations, 2018 specifies that a customs broker may seek relief in appeal to the Tribunal against orders under regulation 16 or 17 which, according to Learned Authorized Representative, excludes appeals against prohibition under regulation 15, when read with the power to frame regulation vested by section 146 (2) of Customs Act, 1962, it is anathema that authority conferred by statute can even be claimed to be capable of being exercised without any accountability or redressal. If section 146(2), the parent provision, is perceived as restricting appeals to the specified detriments of suspension or revocation of licence, surely the insinuation of the third detriment, as it undoubtedly is, of prohibition, should conversely not have found a place in the Regulations without specific enablement in law. If it is claimed that the generality of section 146 (2) of Customs Act, 1962 condones the presence of the third detriment, the existence of remedy cannot, for similar reasons, be denied. We would thus follow that which the Hon'ble Supreme Court laid down in Union of India v. KP Joseph [(1973) 1 SCC 194] '10.... It is because an administrat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be warranted in certain crises. She relies on the decision of the Hon'ble High Court of Bombay in SR Sale & Co v. Union of India [2013 (296) ELT 289 (Bom)] and of the Hon'ble High Court of Rajasthan in Pinkcity Logistics Ltd v. Commissioner of Customs [2015 (320) ELT 241 (Raj)]. We are entirely in agreement with this; it is not our intention to substitute the satisfaction on the part of the Commissioner as specified in the Regulations with our own. To do so would, in our opinion, travel beyond the object of the law for satisfaction is neither definable nor estimable. We are also conscious that the Hon'ble High Court of Bombay, in Commissioner of Customs (General) v. Worldwide Cargo Movers [2010 (253) ELT 190 (Bom)], has deliberated upon and articulated the scope of appellate intervention thus '28. In our view, the Tribunal has committed a grave error in interfering with the decision of a domestic authority. In a departmental proceeding one has to see whether the principles of natural justice are followed and the findings are justified from material on record. Once both these aspects are satisfied if an outsider Tribunal interferes, its findings and order will be improper and perv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also appear that the Commissioner is not adequately cognizant of the limits of the prohibitory power vested in him. Prohibition is to be imposed for non-fulfillment of obligation in carrying out functions in a section (or sections) of the customs station. And the prohibition is to be restricted to that sections (or sections) of the customs station. It cannot extend to the entire zone as the impugned order does. Not only is this a clear example of lack of application of mind to the circumstances of alleged non-fulfillment but also a clear demonstration of overreach beyond the limits of empowerment. The correct implementation of this provision may require the authority concerned to obtain from archival record a comprehension of the structural division of customs houses. 16. In view of the legal issues addressed supra and the facts as laid out before us, we set aside the order of prohibition for failing to comply with the limitation placed on exercise of power by the Commissioner of Customs under regulation 15 of Customs Broker Licensing Regulations, 2018. Learned Authorised Representative is directed to serve a copy of the order on the respondent Commissioner immediately to give e ..... X X X X Extracts X X X X X X X X Extracts X X X X
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