9911796707
TMI Blog2024 (10) TMI 578X X X X Extracts X X X X X X X X Extracts X X X X ..... s being an appeal of filed by the Commissioner of Customs, Pune, at the instance of the Committee of Chief Commissioners acting under the authority of section 129D of Customs Act, 1962, we take this up for disposal with the assistance of Learned Authorised Representative. 2. Proceedings were initiated against M/s Logic Transware (I) Pvt Ltd in accordance with Customs Brokers Licensing Regulations (CBLR), 2018 and, on completion of the prescribed process, the order [order-in-original no. 01/2013-14 dated 7th November 2013] of the licensing authority exonerated the respondent herein of all alleged breaches of regulation 10 of Customs Brokers Licensing Regulations (CBLR), 2018. 3. The issue of the maintainability of such appeals, at the instance of Committee of Chief Commissioners constituted under section 129D of Customs Act, 1962, has been examined by the Tribunal in Commissioner of Customs (General) v. Kamal Clearing Forwarding Pvt Ltd disposing off appeal [C/89304/2013] against order [order-in-original no. 89/2013/CAC/CC(G)/PKA/CBS(Admn) dated 25th July 2013] of Commissioner of Customs (General), Mumbai. 3. ... In the meanwhile, the respondent filed a written submission enclosing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e option to appeal is specifically permitted in the Regulations only to an aggrieved licensee. A harmonious reading of the penal and appellate provisions and the exclusion of any higher authority, even by mention, in the Regulations make legislative intent very clear : that if the progenitor of the licence, the author of its being, has decided to the detriment of a licensee, such aggrieved entity may file an appeal to the Tribunal and a decision to retain the licence carries with it a finality that does not admit of any intervention under the Regulations. The licensing authority is not envisaged as an appellant under the Regulations. The absurdity of the proposition of appealing against oneself canvassed on behalf of the appellant will be dealt with in due course. 9. Licence holders are professionals who earn their livelihood by rendering services to the import and export community. The discontinuance of a licence, whether temporarily or permanently, is detrimental to the licencee, its employees and their dependents. Hence, akin to conditions of service of officers of Customs, the licensing regulations stipulate a procedure for revocation that is closely parallel to the disciplinar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority established in the taxing statute itself as enacted by the sovereign Legislature. There is no such provision for review in the Customs House Agents Licensing Regulations, 1984. 13. The consequential question that begs an answer is the scope of taking recourse to the general provision in Chapter XV of Customs Act, 1962 on the assumption that Regulation 23 of the Customs House Agents Licensing Regulations, 1984 is a special provision contemplating appeal only to aggrieved licensee 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 129A of Customs Act, 1962 could have been resorted by an aggrieved licensee. 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 licensee to appeal. As the sovereign Legislature has specifically empowered a separate appel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the provisions of Regulation 22(8) of the CHALR, 2004, no appeal lies to the CESTAT against an order passed by the Commissioner of Customs under Regulation 21; -(b) Whether Regulation 22(8) of the CHALR, 2004 is ultra vires the provisions of the Customs Act, 1962 inasmuch as the same takes away the substantive right of Appeal to the CESTAT as provided under Section 129A of the Customs Act, 1962; -(c) Whether Regulation 21 of the CHALR, 2004 is ultra vires the provisions of the Customs Act, 1962. answered thus 12. The procedure for suspending or revoking a licence under Regulation 20 is specified in Regulation 22. Broadly speaking, Regulation 22 requires the issuance of a notice to show cause, an opportunity to file a written statement and the holding of an enquiry in the course of which evidence can be produced. At the conclusion of the enquiry, a report is prepared, a copy of which is to be furnished by the Commissioner to the CHA who has a further opportunity to make a representation. Thereupon, the Commissioner is empowered to pass an order thereon. 13. Regulation 22(8) provides as follows: (8) Any Customs House Agent aggrieved by any decision or order passed under regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mani Pyarelal Gupta vs. W.R. Natu [(1963) 1 SCR 721]. This, however, would not be dispositive of the issue which arises in this case because essentially what the Court has to consider is whether the general appellate provisions that are contained in Section 129A would apply to action which is initiated against a CHA under the Regulations of 2004. Section 146 provides for the licensing of an agent for carrying on business within a customs station involving import or export of goods or entry or departure of a conveyance. The entire subject matter of the licensing of CHAs which commences from invitation of applications and covers qualifications of eligibility, the holding of examinations, award of licences, obligations of CHAs and disciplinary control are governed by the regulations. Section 146(2) contemplates that the Regulations are intended to fulfill the purpose of carrying out of the provisions of the section. That the Regulations may also govern the remedies which are available to a CHA against an order passed in the disciplinary jurisdiction is made abundantly clear by clause (f) of Section 146(2). Section 146(2)(f) clarifies by way of illustration that the Regulations can gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... we answer Question (a) in the affirmative and Questions (b) and (c) in the negative. The appeal shall accordingly stand disposed of in the aforesaid terms. There shall be no order as to costs. 7. The Hon ble High Court of Bombay has, thus held that the limiting scope of appellate remedy in the Regulations governing customs brokers is deliberated restriction and that, in such circumstances, the general provision for appeal cannot be resorted to. The judgement of the jurisdictional High Court is binding on us. 4. Furthermore, the order [final order no. 58599/2024 dated 28th August 2024] of the Tribunal in Commissioner of Customs (Ariport General), New Delhi v. Entire Logistics Pvt Ltd, disposing off appeal [customs appeal no. 50076 of 2020] against order [order-in-original no. 102/MK/POLICY/2019 dated 27th September 2019] of Commissioner of Customs (Airport General), New Delhi has, by relying on the decision of the Hon ble Delhi High Court in Commissioner of Customs (Airport General) vs. Transworld Cargo Travels [(2023) 10 CENTAX 122 (Del)], held that such appeals by the licensing authority are not maintainable. 5. In view of the settled law as narrated supra, this appeal has been i ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
