9911796707
TMI Blog2018 (5) TMI 2043X X X X Extracts X X X X X X X X Extracts X X X X ..... s for enforcing such authority. Within this scheme, the institution of custom brokers has been incorporated in section 146 of Customs Act, 1962, even though it could have had a separate legislate existence, owing to synergy and convenience. A close parallel can be seen in the framework of disciplinary proceedings that govern detriment to terms and conditions of service. The designated disciplinary authority may impose stipulated penalties, including dismissal, removal or retirement from office, in accordance with the procedure prescribed which may be appealed against by the employee. There is no provision within that framework for the disciplinary, or any higher, authority to appeal for enhancement and the employer is competent to seek judicial redressal for the limited purpose of enforcing the penalty imposed by the disciplinary/appellate authority. In like manner, it is inconceivable that an authority that is administratively superior to the licensing authority should be empowered to direct the licensing authority to seek retraction of its own order. An order issued under the Customs Broker Licencing Regulations, 2018 (or any predecessor Regulations) is not an adjudication order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal as the matter stood remanded instead of being dismissed on that legal impediment and, that too, despite there being commonality in the constitution of the bench that decided both matters, he pleaded for consideration of the issues afresh. He further submitted that an earlier decision of the Tribunal in Commissioner of Customs, Mumbai v. Bipinchandra Kantilal Mehta [final order no. A/94117-94118/16/CB dated 1st December 2016 in appeal no. C/1213/05-Mum and cross-objection no. C/CO/436/05-Mum] had impliedly held such an appeal to be maintainable by allowing a remand for fresh decision. Reliance was also placed on the decision of the Tribunal in Commissioner of Customs (Import), Chennai v. NT Rama Rao [2017-TIOL-3192-CESTAT-MAD] which, though dismissing the appeal, went into the merit of the submissions instead of questioning the maintainability. He further submits that the decision that was referred to by the Bench, being in jeopardy with the Hon'ble High Court of Bombay having admitted appeals on substantial question of law, does not offer itself as a binding precedent for determination of the present appeal. Finally, he submits that, in the event of conflicting dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue regarding right of the Revenue to file an appeal under CBLR, 2013 was specifically examined by the coordinate Bench in more than one occasions and concluded that in the presence of specific provision for CHA as well as no specific provision for the Revenue, such appeal is not contemplated or permissible under CBLR, 2013 on the part of the Revenue. We have no reason to differ with the said decisions and accordingly by following the ratio of the said decisions (supra), we find that the appeal by the Revenue is not maintainable and the same is dismissed.' rejected the contention. As this Bench has no option but to follow binding precedent and as the plea, urging the contrary to be accepted, for reference to a Larger Bench has been categorically and unambiguously rejected with reasons, it is solely the alleged variation with the decision of the Tribunal in re Zulash Clearing and Shipping Agency and in re Bipinchandra Kantilal Mehta that needs to be deliberated upon. As pointed out by Learned Authorized Representative, one of us was a constituent of the Bench that passed both the orders. However, Learned Authorized Representative has failed to perceive the circumstances in which th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ee and that Revenue authorities cannot be discriminated against. Such a proposition does not appear to be congruent with legislative intent as the special provision itself is not warranted if general provision in Section 120 9A of Customs Act, 1962 could have been resorted by an aggrieved licencee. On the contrary, legislative intent is abundantly clear in empowering the Regulation making authority to provide for an appellate mechanism distinct from that enacted by the sovereign Legislature in the Customs Act, 1962 and the Regulation-framing authority has, in accord with the wisdom of generations, entitled only the licencee to appeal. As the sovereign Legislature has specifically empowered a separate appellate authority, the intent to deny the replication of the normal appellate remedy to the disciplinary authority against its own order is emphatic...' 7. The enactment of Customs Act, 1962, intended to consolidate and amend the various laws related to customs, is in pursuance of the constitutional authority vested in Parliament to legislate on 'duties of customs including export duties' in serial no. 83 of List I in Seventh Schedule to the Constitution of India. Almost, in its ent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l law as a supplement to the special law. We are certain that the arguments of Learned Authorised Representative cannot run contrary to this principle even though there is a certain dilution in his proposition that, while the special law applies to the 'customs broker', the general law is applicable to the licensing authority. As pointed out in re Mukadam Freight Systems Pvt Ltd, had legislative intent been otherwise, there was no necessity to empower an appellate provision within the Regulations and the general provisions should have sufficed. Indeed, the absence of constitution of appellate mechanism within the general empowerment to frame Rules and Regulation in section 156 and 157 of Customs Act, 1962 is in stark contrast with the empowerment of section 146 of Customs Act, 1962 implying an entirely different approach to the institution of 'custom brokers'. 9. We are unable to perceive the circumstances in which the licensing authority may see fit to retract its own decision through an appellate mechanism. Nor can we conceive of any reason to suggest monitorial oversight of the exercise of powers under the said Regulations. The Commissioner of Customs is a senior functionary an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ose of enforcing the penalty imposed by the disciplinary/appellate authority. In like manner, it is inconceivable that an authority that is administratively superior to the licensing authority should be empowered to direct the licensing authority to seek retraction of its own order. 12. The trajectory of this reasoning may raise yet another question, viz., that if the licensing authority may remain unsupervised there should be no cause for oversight of the highest adjudicating authority through review and direction to appeal. There can be no doubt that the 'customs broker' license is created by the Commissioner under valid authority assigned by the Regulations. In discharging adjudicatory or appellate function, the Commissioner is assigned the authority to collect taxes by Parliament and it is that organ of governance which is the architect of the levy. The final authority to drop, or confirm, proceedings cannot, therefore, vest in the Commissioner as adjudicating authority and conformity to the constitutional principle of collection of tax in accordance with law must be ascertained. Hence, the mechanism of Committee of Chief Commissioners or of Commissioners has been institutiona ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
