TMI Blog2020 (1) TMI 1338X X X X Extracts X X X X X X X X Extracts X X X X ..... SIONER OF CUSTOMS (GENERAL) , MUMBAI VERSUS MUKADAM FREIGHT SYSTEMS PVT LTD [ 2017 (5) TMI 798 - CESTAT MUMBAI ] that there is no such provision for review in the Customs House Agents Licencing Regulations, 1984. Furthermore, from a reading of section 146 of Customs Act, 1962 that enables notification of regulations for governing the operation of custom house agents and in which the scope and extent of such regulations to encompass, specifically, appeals are enumerated while limiting such appeals only to the appeals, if any, against an order of suspension or revocation of a license, and the period within which such appeals shall be filed - Had the general provision of appellate jurisdiction in Customs Act, 1962 sufficed, this specific enablement would not have been necessary. By enabling appellate jurisdiction through the power to frame regulations under section 146 of Customs Act, 1962, which is conspicuously absent in the general power to frame rules and regulations under section 156 and 157 of Customs Act, 1962, not only is a separate framework contemplated but also limited the recourse only to the licensee. Appeal dismissed. - CUSTOMS APPEAL NO: 279 OF 2010, 353 OF ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grounds of departmental appeal who also urged us to dismiss the appeal of the licencee. 6. The appeal of custom house agent has not advanced any plea of breach of the procedure laid down in Custom House Agents Licensing Regulations, 2003. Nor is there any submission that the principles of natural justice have been denied to them. There is a clear finding of the licensing authority that the custom house agent , though dealing with the exporter for a long time, had failed to maintain the authority letter which was required to be obtained for each job undertaken. In Ashiana Cargo Services v. Commissioner of Customs (I G) [2014 (302) ELT 161 (Del)], the Hon ble High Court of Delhi has held that 8. The issue before the Court is the proportionality of the penalty awarded in this case. The CHA Regulations prescribe two penalties: suspension of the license for a particular period of time, and revocation of the license, such that it irretrievably loses its currency. Once the Commissioner reaches a decision, the CESTAT, and this Court, would not ordinarily interfere with the award of punishment, denuding the disciplinary power of the designated authority. That said, the course ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the case and settled law on the extent to which the licencing authority may be second guessed by appellate authorities, we find no reason to accept the plea of the licencee for setting aside the penalty. 7. As far as the other appeal is concerned, the Tribunal, in Commissioner of Customs (General), Mumbai v. Mukadam Freight Systems Pvt Ltd [2018 (359) ELT 612 (Tri-Mumbai)], having held that 8. The Regulations vest the authority to bring into being, and erase out of existence, a customs house agent in Commissioner of Customs. No higher authority is envisaged for the discharge of any function in relation to customs house agents. Even the Regulation making authority, the Central Board of Excise Customs (C.B.E. C.), has not retained any role - supervisory, monitorial, or Regulatory - to itself in the scheme of administration of these agents. The Regulations empower the establishment of a distinctive appellate mechanism; however, the authority to frame the Regulations has, in its wisdom, empowered the Tribunal by reference to it in Regulation 23. The option to appeal is specifically permitted in the Regulations only to an aggrieved licensee. A harmonious reading of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uty liability and to effect, wherever not levied or short-levied, recovery of duties. A finality in tax matters is not, therefore, intended to be vested in an administrative authority because collection of the Legislated tax is for the benefit of the citizens of the country and in accordance with the power to tax having been invested by the citizenry on the sovereign Legislature. The adjudication and appellate orders are, for that reason, subject to scrutiny of the review authority 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vision would erase the recourse to the general provision, as it does for custom house agent/custom broker, the deliberate exclusion of an appellate remedy in this special provision should also erase the scope for recourse to the general provision. This inference is derived from the conferment of the power upon the entity empowered to notify the Regulation by a specific mandate in Section 146 of Customs Act, 1962 to designate an appellate jurisdiction. If the sovereign legislature had intended that interchangeability of appellate provision between that in the Regulations and in Chapter XV of Customs Act, 1962 was not anathema and that a perceived void in the Regulations could be bridged by recourse to the general provisions, there would have been no need to include the devising of an appellate scheme in the scope of the regulation framing powers. The Central Board of Excise Customs has, in its wisdom, decided that there is no prejudice in deliberately withholding appellate remedies from any other than an aggrieved agent/broker. And what legislative intent does not allow directly may not be permitted in an indirect manner. In Jagir Singh v. Ranbir Singh Another [AIR 1979 SC 381], ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... house, it is the Commissioner of Customs who has the highest stakes in its effective and efficient functioning; no Commissioner of Customs would consider that objective to have been achieved with the continued tolerance of a delinquent agent/broker. It is, therefore, inconceivable that the licensing authority is so bias as to forfeit the high reputation of the organisation that is presided over warranting intervention by another authority howsoever eminent. It, therefore, does not behove upon a collegial body/individual, not acknowledged in the Regulations, to take upon itself the mantle of supervision and thus insinuate itself into a process not contemplated either in Section 146 of Customs Act, 1962 or by the Regulations framed thereunder. 14. This brings us to the contradistinction with disputes relating to collection of revenue. The power to legislate taxes is vested in the sovereign legislative body as a consequence of the evolution of governance systems from absolute monarchy through feudal oligarchy to democratic rule. The collection mechanism has been devised to vest designated tax collectors with authority to act in accordance with the commission enacted by the sovere ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
