Rudolph Thomas Lobo & Co. (P) Ltd vs Commissioner Of Customs (General), ...

(Arising out of Order-in-Original No. 60/2014-15 dated 9.12.2014 passed by Commissioner of Customs (General), Mumbai)

For approval and signature:

Honble Mr. S.S. Garg, Member (Judicial) and Honble Mr. Raju, Member (Technical)

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1. Whether Press Reporters may be allowed to see : No the Order for publication as per Rule 27 of the CESTAT (Procedure) Rules, 1982?

2. Whether it should be released under Rule 27 of the :

CESTAT (Procedure) Rules, 1982 for publication in any authoritative report or not?

3. Whether Their Lordships wish to see the fair copy : Seen of the Order?

4. Whether Order is to be circulated to the Departmental : Yes authorities?

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Rudolph Thomas Lobo & Co. (P) Ltd. Appellant Vs. Commissioner of Customs (General), Mumbai Respondent

Appearance: Shri C. Subba Reddy, Advocate, for appellant Shri S.J. Sahu, Assistant Commissioner (AR), for respondent

CORAM: Honble Mr. S.S. Garg, Member (Judicial) Honble Mr. Raju, Member (Technical)

Date of Hearing: 8.10.2015 Date of Decision: 29.10.2015

ORDER NO

Per: S.S. Garg

This appeal is directed against order-in-original No. 60/2014-15 dated 9.12.2014 passed by Commissioner of Customs (General), Mumbai-I, wherein the learned Commissioner, by exercising the power conferred under the provisions of Regulation 19(2) of the Customs Brokers Licensing Regulations, 2013 (CBLR, for short), ordered the suspension of the Customs Broker Licence No.11/799 of M/s. Rudolph Thomas Lobo & Co. Pvt. Ltd., ordered vide order No.51/2014-15 dated 14.10.2014, shall continue pending enquiry proceedings under Regulation 20 of the CBLR, 2013. The only point for our consideration in this appeal is whether the order of the Commissioner, dated 9.12.2014 is as per the statutory regulation governing the appellant or not.

2. In this regard, the learned counsel for the appellant submitted that the impugned order of suspension of licence is illegal and passed against the statutory provisions of the law and also in violation of the principles of natural justice and, therefore, is liable to be set aside.

2.1 The learned counsel for the appellant-CHA submits that the said CBLR, 2013 lays down the time limit for conducting of enquiry proceedings, submission of enquiry officers report, reply to be filed against the findings in the enquiry report and passing of the order thereafter, either revoking the licence or setting aside the suspension.

2.2 The learned counsel further submits that in this case, the licence was suspended vide order dated 14.10.2014 and vide order dated 9.12.2014, the suspension was continued. The charge-sheet was issued to the appellant specifying the ground of imputation vide notice dated 20.5.2015 which is issued after the delay of 129 days whereas it should have been issued before 10.1.2015.

2.3 The learned counsel further submits that as per Regulation 20(1) of CBLR, 2013, the enquiry shall be completed within a period of 90 days from the date of issue of the charge-sheet whereas in the present case, the said date expired on 10.7.2015. In the meantime, the appellant filed reply denying the charges and requested for supplying the list of witnesses. A communication in this regard was sent to the Commissioner vide letter dated 21.8.2015 by the appellant and the copy of the same also placed on record by the appellant. The counsel further submitted that the entire enquiry proceedings are required to be completed and the order is to be passed by the Commissioner within 270 days from the date of receipt of the offence report which is admittedly not being done in this case. In these circumstances, the appellants counsel pleads for setting aside the suspension and allowing the operation of the CHA licence. In support of his submissions, the learned counsel relied upon the following judgments:-

(i) AM Ahamed & Co. vs. CC(I), Chennai reported in 2014 (310) ELT 673 (Mad.);

(ii) CC, Chennai vs. CESTAT, Chennai reported in 2014 (310) ELT 673 (Mad.);

(iii) Sai Dutta Clearing Agency P. Ltd. vs. CC(G), Mumbai reported in 2015 (317) ELT 162 (Tri.-Mum.);

(iv) Sri Radhakrishna Shipping (P) Ltd. vs. CC(G), Mumbai reported in 2015 (318) ELT 600 (Tri.-Mum.);

(v) Durga Clearing Pvt. Ltd. (order No.A/2035/15/CB dated 8.7.2015 in appeal No. C/85343/14);

(vi) Mohindra Shipping Agency vs. CC(G), Mumbai reported in 2015 (321) ELT 264 (Mum.);

(vii) Sanco Trans Ltd. vs. CC, Seaport, Chennai reported in 2015 (322) ELT 170 (Mad.).

3. On the other hand, the learned AR submits that the allegations against the appellant are very serious in nature as they have not followed the provisions of CBLR, 2013 and their licence has been rightly suspended during the pendency of the enquiry proceedings which is in progress. He further submitted that the time limit prescribed in CBLR, 2013 is directory and not mandatory in nature. In support of his submission, he relied upon the decision of the Honble Calcutta High Court in the case of Bose Enterprise & Anr. vs. UOI in WP No. 143 of 2010, GA No.253 of 2011, decided on 15.3.2011.

4. We have considered the submissions of both parties and perused the records.

5. The learned counsel for the appellant also referred to the Boards circular No. 9/2010-Cus. dated 8.4.2010, wherein the Board has clarified that an overall period of nine months has been prescribed from the date of receipt of offence report, for completion of enquiry and taking the decision by the licensing authority. Since the statutory period in this case has expired and the enquiry has not yet been completed, the suspension of licence should not be continued. Further, in all the judgments cited above, this Tribunal as well as the Honble Madras High Court has consistently held that the suspension should not be continued if the enquiry proceedings are not completed within the prescribed time limit of nine months. The appellants licence was suspended since 14.10.2014 and the same continued to remain under suspension by the impugned order dated 9.12.2014. CBLR, 2013 itself has prescribed an overall time limit of nine months to complete the proceedings against the CHA right from the initiation of the proceedings to its final disposal. None of the time limit has been adhered to by the Customs authorities in this case. In these circumstances, it will be in the interest of justice, equity and fair play to set aside the suspension and allow the appellant to function as CHA, pending completion of enquiry by the Customs authorities.

6. In these circumstances, we are constrained to set aside the order of suspension dated 9.12.2014 passed by the Commissioner of Customs (General). However, the Customs authorities are at liberty to continue with the enquiry proceedings in accordance with law.

7. The appeal is disposed of in the above terms.

(Pronounced in Court on ___.10.2015)

(Raju) Member (Technical) (S.S. Garg) Member (Judicial)

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