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TMI Blog2018 (8) TMI 1526X X X X Extracts X X X X X X X X Extracts X X X X ..... on - Held that:- The show-cause notice proposing to revoke the licence was issued on 01/06/2017 which is beyond the period of 90 days time limit prescribed by the CBLR - In the case of Ambika Enterprises, [2016 (6) TMI 265 - CESTAT NEW DELHI], the Division Bench of this Tribunal considered an identical issue and held that show-cause notice issued beyond 90 days is not sustainable in law being violative of the Regulations. Further, the enquiry report which as per the Regulation should be submitted within 90 days from the date of issuance of such show-cause notice has also been not adhered to in the present case. The enquiry report forwarded on 15/09/2017 but the said report is not dated. The enquiry report was served on 26/09/2017 which is also beyond 90 days prescribed under the Regulations. Order of revocation of CHA License set aside - appeal allowed - decided in favor of appellant. - C/Stay/20029/2018 in C/20001/2018-DB - Final Order No. 21177/2018 - Dated:- 17-8-2018 - HON'BLE SHRI S. S. GARG, JUDICIAL MEMBER And HON BLE SHRI DEVENDER SINGH, TECHNICAL MEMBER Shri M Balagopal Advocate For the Appellant Shri Chandramohan, Commissioner ( AR ) For the Respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice is hit by time limitation by relying upon the Regulation 20(1) of the CBLR. They also submitted that they cannot be held liable for not verifying the antecedents of the client, place of work of the exporter and that they had done KYC check and submitted documents as evidence and further that their employee Shri J.J. Ebanesar had acted beyond scope of his employment for which the appellant is not responsible. After considering the submissions of the appellant, the Commissioner upheld the allegation in the show-cause notice vide the impugned order and ordered for revocation of CB licence and forfeiture of security deposit under CBLR 2013. Aggrieved by the said order, the appellant has filed the present appeal. 3. Heard both sides and perused records. 4.1. The learned counsel for the appellant submitted that the impugned order is not sustainable in law as the same has been passed without properly appreciating the facts and the law. He further submitted that the impugned order is contrary to the binding judicial precedent on the same issue. He further submitted that the revocation of the licence and forfeiture of security deposit under CBLR 2013 is liable to be set a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missionerate concerned has to be taken as the date of receipt of the offence report. He further submitted that vide letter dt. 26/10/2016, the Turicorin Commissionerate had intimated the Commissioner of Customs, Cochin; the details of the alleged offence committed by the CB and had also forwarded a copy of Order-in-Original No.91/2016 dt. 30/09/2016 passed by the Additional Commissioner of Customs, Tuticorin and the receipt of the said letter was acknowledged by the Cochin Commissionerate on 03/11/2016. It is his further submission that in the present case, the date of receipt of the offence report shall be 03/11/2016 when the Commissioner of Customs, Cochin received the letter on 26/10/2016 along with Order-in-Original. He also submitted that the Commissioner has failed to notice that the letter dt. 26/10/2016 clearly mentioned the alleged violation by the Customs Broker and the order passed by the Additional Commissioner, Tuticorin containing the alleged violation by the Customs Broker and the same was annexed with the letter dt. 26/10/2016. He further submitted that after receipt of this letter and the Order-in-Original, show-cause notice was issued on 01/06/2017 which is beyond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umar [2017(349) ELT 12] xiii. LMS Transport Co. Vs. CC(General), Mumbai [2014(299) ELT 368] 5. On the other hand, the learned AR defended the impugned order and submitted that the show-cause notice was issued within 90 days from the date of receipt of offence report dt. 28/02/2017 and the same was received on 06/03/2017 and thereafter show-cause notice was issued on 01/06/2017 which is within a period of 90 days. He further submitted that the Commissioner has given detailed reasons for considering each and every submission made by the appellant. He further submitted that as per the various decisions of the Hon ble Supreme Court, the Tribunal has to interpret the words written in the statute which is clear and there is no ambiguity in it. He further submitted that the communication by the Tuticorin Commissionerate along with the Order-in-Original which was received by the Cochin Commissionerate on 03/11/2016 cannot be termed as offence report. He further submitted that on merit also, the appellant has misconducted in performing his duties as Customer Broker as he has not properly verified the documents and the exporter physically. 6.1. After considering the submissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal considered an identical issue and held that show-cause notice issued beyond 90 days is not sustainable in law being violative of the Regulations. The Division Bench of the Tribunal has relied upon the decision of the Madras High Court where this Regulation was specifically considered and in para 9 10, the Tribunal has observed as under:- 9. The Hon ble High Court of Madras in A.M. Ahamed Co. v. Commissioner of Customs (Imports), Chennai - 2014 (309) E.L.T. 433 (Mad.) has held as under : 20. The time limit prescribed in Regulation 22(1) has to be understood in the context of the strict time schedule prescribed in various portions of the Regulations. Regulation 20(2), for instance, entitles the Commissioner, to suspend the licence of an agent, in appropriate cases where immediate action is necessary. Regulation 22(3) prescribes a time limit of 15 days. Regulation 22(1) prescribes a time limit within which action is to be initiated. It also prescribes the time limit under Regulation 22(5). Therefore, considering the fact that the whole proceedings are to be commenced within a time limit and also concluded within a time frame, I am of the view that the show cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he lower authority which was issued without adhering to the time schedule is liable to be set aside on these grounds. Accordingly, we set aside the impugned order dated 11- 5-2015 of the original authority and allow the appeals. 6.2. Further the enquiry report which as per the Regulation should be submitted within 90 days from the date of issuance of such show-cause notice has also been not adhered to in the present case. The enquiry report forwarded on 15/09/2017 but the said report is not dated. The enquiry report was served on 26/09/2017 which is also beyond 90 days prescribed under the Regulations. 7. In view of our discussion above, we are of the considered opinion that the Department has not followed the mandatory provision regarding the time limit as provided in Customs Broker Licensing Regulations, 2013. Consequently, we set aside the order of revocation of CHA licence of the appellant only on this ground without going into the merits of the case by following the ratio of Hon ble Hon ble High Court of Madras in the case of Santon Shipping Services Vs. CC, Tuticorin and anr. in CMP No.5921 of 2016 and CMA No.730 of 2016 / Order dt. 13/10/2017. Appellant s appeal is a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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