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TMI Blog2020 (6) TMI 397X X X X Extracts X X X X X X X X Extracts X X X X ..... ars i.e. for the period which was lost from the date of suspension i.e. 15-12-2010 till the date of original validity i.e. 15-12-2015. The license stands restored for the period of 10 years w.e.f. the date of this order - appeal allowed - decided in favor of appellant. - Customs Appeal No. 632 of 2008 AND Customs Appeal No. 22876 of 2014 - Final Order No. 20360-20361 /2020 - Dated:- 16-6-2020 - HON'BLE MR. S.S GARG, JUDICIAL MEMBER HON'BLE MR. P. ANJANI KUMAR, TECHNICAL MEMBER Appearance: Shri Ram Sharma Chandran, Advocate For the CHA Shri M.K. Davindran, Superintendent(AR) For the Revenue Per : S.S GARG Appeal No. C/632/2008 has been filed by the Department against the impugned order dated 15/07/2008 passed by the Commissioner of Customs, Bangalore whereby the Commissioner has dropped the proceedings initiated against M/s. Koushik Cargo Pvt. Ltd., Bangalore vide show-cause notice dt. 19/10/2006. Appeal No. C/22876/2014 has been filed by M/s. Koushik Cargo Pvt. Ltd. against the rejection of renewal of CHA licence. Since both the appeals are arising out of the same facts, both the appeals are taken up together for discussion and disposal. Fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporting unit before filing the Bill of Entry. It also appeared that CHA might not have deliberate involvement in the imports and intention to mislead the department and the lapses on their part were mainly attributable to their negligence as they wholly relied upon the representative who handled the import. The circumstances might not warrant suspending/ revoking of their licence under Regulation 22 of the CHALR 2004 but the CHA might be imposed with minor punishment of their lapses. The said report was given to the CHA and they filed reply to the said Inquiry Report. After considering the submissions of the CHA and the documentary evidence on record, the learned Commissioner found that the Department has failed to prove the negligence on the part of the CHA and consequently dropped the proceedings. Aggrieved by the said finding, the Department has filed the present appeal. Department s appeal was rejected by the Tribunal vide its order dt. 15/10/2014. Thereafter the Department challenged the said decision before the Hon ble High Court and the Hon ble High Court vide its order dt. 04/12/2019 restored the appeal filed by the Department. 3. Heard both the parties and perused the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hould have waited and not disposed of the appeal. 6.1. After considering the submissions of both the parties, we find that in the impugned order, the Commissioner of Customs, Bangalore has found nothing against the CHA. He has also considered the Inquiry Report of the Deputy Commissioner, ICD, Bangalore and other material on record and has returned categorical finding holding that the Department has failed to bring any evidence on record showing the negligence of the CHA. Further we find that the Department has not challenged the findings on merits and has only taken a technical ground that the impugned order is premature as the appeal of the CHA against the penalty of ₹ 75,000/- was pending before the Tribunal. Further we find that when the appeal of the appellant was pending before the Tribunal against the imposition of penalty of ₹ 75,000/-. In the meantime, the licence of the appellant was being renewed subject to the outcome of the appeal before the Tribunal from time to time. In view of these facts, we do not find any infirmity in the impugned order and therefore we dismiss the Department s appeal being devoid of merits. 7. In the appeal C/22876/2014, the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that the penalty imposed on the Customs Broker under Regulation 112 of Customs Act, 1962 cannot be a ground for rejection of renewal of licence as the imposition of penalty does not amount to misconduct. He also submitted that appellant s licence was renewed after payment of penalty imposed under Section 112 of Customs Act, 1962. He also submitted that Regulation 5(e) of the CBLR 2013 is not applicable to the existing Customs Broker licence holders. For this submission, he relied upon the decision of the Tribunal in the case of Prashun Jain Vs. CC, New Delhi [2019(370) ELT 491 (Tri. Del.)]. He also referred to Section 159A of the Customs Act and submitted that in relation to renewal of appellant s licence, the Commissioner could not have invoked any provision that is not consistent with the earlier superseded regulations. He also submitted that he moved first renewal application on 06/12/2010 and renewal was granted for 6 months and such renewal for 6 months was granted 8 times. He also referred to Board instruction in F.No.502/6/2007- Cus. VI dt. 08/06/2007 wherein the Board has clearly directed that piecemeal renewals should not be done and renewal should be for 10 yea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicant(s). We further find that Regulation 9 uses the word licensee for the existing Customs Brokers. We further find that the said affidavit has been filed in haste, as is evident from the fact that when Regulation 5 is not applicable to the appellant, there was no requirement to file any affidavit by the appellant. This gets further supported from the first letter dated 1-1-2017 filed by the appellant, to the department, wherein they have prayed to extend the validity of licence for five years i.e. for the period which was lost from the date of suspension i.e. 15-12-2010 till the date of original validity i.e. 15-12-2015. Accordingly, we set aside the impugned order and allow the appeal of the appellant with consequential relief. The C.B. license stands restored for the period of 10 years w.e.f. the date of this order. The respondent Commissioner is directed to give appeal effect immediately, within 10 days of receipt of this order. 11.2. By following the ratio of the above said decision, we are of the considered view that the impugned order refusing to renew the licence of the CHA is not sustainable in law and therefore we set aside the impugned order by allowing the ap ..... X X X X Extracts X X X X X X X X Extracts X X X X
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