Instant Clearing Services (I) Pvt. Ltd vs Commissioner Of Customs

CUSTOMS, EXCISE & SERVICE TAX APPELLATE TRIBUNAL SOUTH ZONAL BENCH CHENNAI

Appeal No.C/41240/2015

[Arising out of Order F.No.R.96-CHA dt.13.2.2015 passed by the Asst. Commissioner of Customs, Chennai]

Instant Clearing Services (I) Pvt. Ltd. Appellant

Versus

Commissioner of Customs, Chennai Respondent

Appearance:

Shri Hari Radhakrishnan, Advocate For the Appellant

Ms.Indira Sisupal, AC (AR) For the Respondent

CORAM :

Honble Shri R. Periasami, Technical Member Honble Shri P.K. Choudhary, Judicial Member

Date of Hearing/Decision : 2.9.2015

FINAL ORDER No.41155/2015

Per R. Periasami

The appellant filed the present appeal against letter F.No.R.96-CHA dt.13.2.2015 issued by the Asst. Commissioner of Customs (Customs Broker Section), Chennai communicating Commissioner of Customs order of denial of renewal of Customs Broker Licence.

2. Before admitting the appeal, the Bench dealt the issue on the maintainability of appeal against AC's letter and vide misc. order dt. 1.5.2015, Revenue was directed to confirm whether any order was passed by the Commissioner directing his subordinate to convey his decision and the matter was listed on 22.5.2015. Thereafter, the Registry was directed to admit appeal and issued notice for hearing on 19.6.2015. On 1.7.2015, the appellant was granted early hearing of appeal vide MISC Oder No.40975/2015 dt. 10.7.2015. Accordingly, the appeal is arising for hearing today.

3. The short issue in this case relates to periodical renewal of Customs Broker licence by the Competent Authority pending outcome of the Hon'ble High Court decision against revocation of licence.

4. Ld. Advocate submits that original CHA Licence was revoked vide OIO No.2152/2004 dt. 30.4.2004 which was challenged before Hon'ble High Court. The High Court in their order dt. 21.8.2006 in W.P.No.14269 granted absolute stay The final disposal of the writ petition is still pending before Hon'ble High Court. He submits that pending outcome of the writ petition, the department periodically renewed their licence from 2003 to 2008. The last renewal was done by the Customs vide order dt. 30.12.2008 and the licence was reviewed upto a period of 5 years (upto 26.5.2014). He submits that appellant made an application for renewal on 22.5.2014 which was kept pending. Subsequently, another writ petition in W.P.No.31990/2014 was filed by the appellant and the High Court vide order dt. 5.12.2014 directed the Commissioner of Customs to dispose of their application dt. 22.5.2014 on merits. Thereafter, the Commissioner considered their representation and denied renewal of licence. He submits that no fresh ground has been made for denial and it was rejected only on the grounds that antecedents of customs broker was not found satisfactory. Ld. advocate submits that department in the impugned letter dt. 13.2.2015 has brought out the very same allegations as stated in OIO dt. 30.4.2014 issued for revocation of licence and the paragraphs 3,4 & 5 of the said OIO dt. 30.4.2014 were reproduced as such and came to the conclusion that antecedents was not satisfactory. He further submits that when there is absolute stay granted by the High Court against the order dt. 30.4.2014, the same cannot be relied on past antecedents. He also submits that there is no fresh allegation of antecedents made out by department for denial. He relied this Tribunal decision in similar circumstances in the case of Sharp Cargo Movers Vs CC New Delhi - 2003 (162) ELT 361 (Tri.-Del.) wherein the Tribunal directed the Commissioner to issue temporary working CHA licence.

5. On the other hand, Ld. A.R reiterates the order and submits that reasons for rejection of renewal are brought out in the order. She drew our attention to High Court order dt. 5.12.2014.

6. After hearing both sides, we find that appellant-CHA licence was revoked by Commissioner of Customs vide OIO dt. 30.4.2014 and the same has been stayed by the Hon'ble High Court order dt. 21.8.2006. Since then the department has been periodically renewing their licence for a period of 3 months, 2 months, one year, six months and the last renewal was made on 31.12.2008 and the licence was renewed for a period of five years. We find that the writ petition challenging revocation order before Hon'ble High Court is still pending. When the appellant made application on 22.5.2014 before Customs for requesting for renewal the same was kept pending. We find that when the appellant filed writ petition No.31990/2014 and the Hon'ble High Court in their order dt.5.12.2014 directed the respondent i.e. Commissioner of Customs to consider their application on merits within four weeks. It is pertinent to see that it is only after the Hon'ble High Court direction in the above order the authority has considered the application and denied the renewal. It is needless to say that when a Lower Authority was directed by the High Court to decide the application, the Commissioner of Customs being respondent in the said High Court order should have signed and issued the said order in this case whereas we find there is not even any mention of the High Court order in the said letter signed by the Deputy Commissioner of Customs and issued in a routine manner communicating the Commissioner's decision of denial of renewal of licence.

7. On merit, we do not find any valid reason or any new grounds made out for denial fo renewal of licence. Instead the same findings and allegations are made in para 3 to 5 of the OIO dt. 30.4.04 of revocation of licence were reproduced in the said order and based on this came to conclusion that CHA appellant's antecedents are not satisfactory. Once the order is stayed absolutely by Hon'ble High Court and court is yet to decide the writ petition, it cannot be termed as "adverse antecedents" unless and until the writ petition is disposed by the Hon'ble High Court. In view of the above facts and also considering the LAA had renewed the licence 14 times since 2006, we are of the considered view that CHA licence merits renewal. Accordingly, we set aside the impugned AC's letter in F.No.R.96-CHA dt.13.2.2015 and direct the Commissioner of Customs (Sea) to renew the appellants-CHA licence. Appeal is allowed.

(Dictated and pronounced in open court)

(P.K. CHOUDHARY) (R. PERIASAMI) JUDICIAL MEMBER TECHNICAL MEMBER gs 4