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TMI Blog2024 (6) TMI 636X X X X Extracts X X X X X X X X Extracts X X X X ..... of the suspension within 90 days from the date of submission of the inquiry report. In the instant case, the Show Cause Notice was issued on 17.12.2017 well within the time limit of 90 days from the date of receipt of the abovesaid offence report in terms of Regulation 20(1) of CBLR,2013. It is also found that the inquiry report was submitted by the inquiry officer on 12.03.2018 within a period of 90 days from the issuance of notice in terms of Regulation 20(5) of CBLR, 2013. The Adjudicating Authority has issued the Order-in-Original on 01.06.2018 well within the time period of 90 days from the date of submission of report by the inquiry officer as per Regulation 20(7) of CBLR, 2013. Hence, the issuance of Show Cause Notice, inquiry report and its adjudication has been carried out strictly in terms of Regulation 20 of CBLR, 2013. The proceedings for revocation of licence of the Appellant are not hit by limitation. Revocation of License - HELD THAT:- The Customs Broker to derive the financial benefit out of fraudulent transactions indulged in by Mr. Ulhas Gate of M/s. A.P. Cargo Enterprises who was the H card holder had allowed his license to be misused and abused - Fabrication of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of which was also endorsed to Customs, Chennai. Based on the above Prohibition order, the Order of Suspension of Customs Broker Licence of the Appellant was made by Customs, Chennai under the provisions of regulation 19(1) of CBLR,2017 on 12.10.2017 and vide Order-in-Original No.59514/2017 dated 08.11.2017, continuation of Suspension of licence of the Appellant was ordered for by the respondents as per regulation 19(2) of CBLR, 2013. 2.3 From the facts, it appeared to the department that the Appellant had failed in discharging their obligations as the Customs broker as required under Regulation 11(b),(d),(k),(n),17(5) and 17(9) of CBLR, 2013. Regulation 18 of CBLR,2013 stipulates that the Commissioner of Customs subject to the provisions of Section 20 of CBLR, 2013 may revoke the licence of Customs Broker and order for forfeiture of part or whole of security or impose penalty not exceeding Rs.50,000/- on various grounds and accordingly the department issued a Show Cause Notice dated 17.12.2017 to the Appellant as per regulation 20(1) of CBLR,2013 seeking to revoke the license issued, to forfeit the security deposit and to impose penalty under the Regulation 17 18 of CBLR, 2013. 2.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'ble High Court, Chennai in its judgment dated 13.10.2017 in the case of M/s. Santon Shipping Services vs. The Commissioner of Customs, Tuticorin and another, after referring to various judgments had clearly held that the non-issuance of show cause notice within the period of limitation as provided under Regulation 22(1) CHALR, 2004 (now Regulation 20(1) of CBLR, 2013) is bad in law. c) It was submitted that the Hon'ble Division Bench of the Hon'ble High Court at Madurai Bench in the case of CC, Tuticorin vs. MKS Shipping Agencies Pvt. Ltd. [2017 (348) E.L.T. 640 (Mad.)], has categorically held that that the period of 90 days prescribed under Regulation 22(1) of CHALR (now 20(1) of CBLR,2013) is mandatory in nature and cannot be treated as directory and therefore the non-submission of inquiry report within 90 days from the date of the impugned SCN or from the date of submission of statement of defence by the Appellant clearly vitiates the SCN. d) The Hon'ble Madras High Court in the case of Carewell Shipping Pvt., Ltd., vs. Commissioner of Customs and others dated 22.11.2018 in W.P.No.26923 26924 of 2018, in its order dated 28.11.2019 in a batch of writ petitions re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... el.)] iii. Buhariwala Logistics Vs. Commissioner of Customs (I G), New Delhi- [2016 (331) ELT 6339 (Tri-Del.)] iv. ARK Logistics (p) Ltd. Vs. Commissioner of Central Excise, Hyderabad [2010 (261) ELT 648 (Tri.-Bang.)] 5. The Ld. Authorised representative Shri R. Rajaraman representing the Department reiterated the findings of the lower Adjudicating Authority and submitted that the Appellant has violated the relevant provisions of CBLR, 2013 and hence the revocation of licence and imposition of penalty on the Appellant were justified considering the facts and circumstances of the case. The Ld. AR further submitted a letter dated 15.02.2024 of Custom House, Chennai enclosing the letter dated 15.09.2017 of Customs Broker Section, Mumbai-I mentioning Prohibition order, investigation report, etc., as enclosures, for evidencing that the said prohibition order was received in Customs, Chennai only on 18.09.2017. 6. Heard both sides and carefully considered the submissions and evidences on record. 7. The issues that arise for decision in this appeal are :- i. Whether time limits prescribed in terms of Regulation 20 of Customs Brokers Licensing Regulations, 2013 for revoking licence or impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;C' intimation at another customs station. In case of such CHAs, who are found to have violated any provision of the CHALR, 2004 at any customs station, it is clarified that the suspension action against CHA's operations maybe taken by the Commissioner of Customs at the station who issued the CHA license and such action would either be limited to a particular customs station where a violation has been noticed or action against the CHA in general, applicable at all customs stations where the CHA operates, depending upon the gravity and seriousness of the violation. Where the CHA licence is suspended, all 'G' and 'H' cards issued in respect of that licence would become non-operational. 5.2. Further, it is also clarified that the Commissioner of Customs at a customs station who had authorised a CHA to operate on 'C' form intimation, should inform the details of violations to the Commissioner of Customs at the customs station from where the CHA licence was issued for such CHA, so that necessary action for suspension or revocation of CHA licence, could be initiated by him. This would avoid duplication and ensure uniformity in adjudication of a case agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action within fifteen days of the receipt of the report of the investigating authority. A post-decisional hearing shall be granted to the party within fifteen days from the date of his suspension. The Commissioner of Customs concerned shall issue an Adjudication Order, where it is possible to do so, within fifteen days from the date of personal hearing so granted by him. 11.1 The procedure for revocation of Licence and imposition of the penalty is detailed in Regulation 20 of the CBLR, 2013 which reads as follows:- (i) The Commissioner of Customs shall issue a notice in writing to the Customs Broker within a period of ninety days from the date of receipt of an offence report, stating the grounds on which it is proposed to revoke the licence or impose penalty requiring the said Customs Broker to submit within thirty days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs Broker desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. (v) At the conclusion of the inquiry, the Deputy Commissioner o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the licencing authority and not with the investigative authority. 13.1 We find that the relevant offence report mentioned in Board s Circular No. 09/2010 dated 08.04.2010 and regulation 20 of CBLR, 2013 issued by the investigative agency i.e, Mumbai Customs was sent to the licencing authority i.e, Chennai Customs for issuance of suspension order, Show Cause Notice, etc. As the first issue relates to determination of various dates for issuance of Show Cause Notice, inquiry report and adjudication of the Show Cause Notice in terms of Regulation 20 of CBLR, 2013, it is important to copy and paste the Letter of Mumbai Customs : - 13.2 In the instant case, Mumbai-I Customs have sent the Prohibition order along with investigation report vide letter dated 15.09.2017 which was received by Chennai Customs only on 18.09.2017 as evidenced by the date seal on the inward correspondence. Hence the date of receipt of the prohibition order dated 08.09.2017 issued on 12.09.2017 by Mumbai Customs along with the investigation report, statements recorded and documents will be the date of reckoning for issuance of Show Cause notice in terms of regulation 20(1) of CBLR, 2013. We find that in the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Customs. 4. in the event of the license being lost, report the same immediately to the Commissioner of Customs. 5. ensure that he discharges his duties as Customs Broker with utmost speed and efficiency and without any delay. 6. comply with the obligations specified in regulation 10 of the Customs Brokers Licensing Regulations, 2018. In this appeal, the Customs Broker has rented out the Licence to M/s. A.P. Cargo Enterprises due to his greed and avarice. It was the duty of the customs house agent to diligently check the veracity of import / export transactions and there is nothing on record about any such exercise or of due diligence by the appellant. The findings in the impugned order with respect to violation of various Regulations of CBLR, 2013 are rather not disputed. 16.2 The Customs Broker to derive the financial benefit out of fraudulent transactions indulged in by Mr. Ulhas Gate of M/s. A.P. Cargo Enterprises who was the H card holder had allowed his license to be misused and abused. The arrangement between the appellant and M/s. A.P. Cargo Enterprises is clearly meant to commit fraud as evidenced by seizure of innumerable incriminating documents such as certificate of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. We find that the Customs Broker was first prohibited vide prohibition order No. 33/2017-18 dated 12.09.2017 by the Mumbai Customs which was continued by another order No. 46/2017-18 dated 10.11.2017. On the basis of the offence report received from the Mumbai Customs, Chennai Customs has issued the suspension order of the Customs Broker under Regulation 19(1) of CBLR, 2013, which was followed by revocation of the Licence by order dated 01.06.2018. Thus, the Customs Broker was out of business since September 2017 for his various acts of omission and commission. The broker must have suffered enough financially and also loss of his business. The punishment must be proportional to the gravity in the nature of the infraction by the Customs Broker as held by the Hon ble High Court of Delhi in the case of Ashiana Cargo Services Vs. Commissioner of Customs (I G) [2014 (302) ELT 161 (Del.)]. Considering the fact that the Broker was out of business for more than 6 years, we order for re-issuance of the Licence to the appellant subject to fulfilment of the procedural requirements for issue of the Customs Broker Licence. But, we do not interfere with the imposition of penalty or appropria ..... X X X X Extracts X X X X X X X X Extracts X X X X
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