TMI Blog2015 (12) TMI 2X X X X Extracts X X X X X X X X Extracts X X X X ..... hey did. And the assessing authority passed the assessment order in complete knowledge of the facts as well as with knowledge of the CESTAT order in the case of M/s. Kushalchand & Co. (2010 (10) TMI 239 - CESTAT, BANGALORE). The endorsements were made by the assessing officer on the face of the Bill of Entry on the basis of CESTAT judgement which has become final. It (CESTAT) judgement was not challenged and therefore became binding on all lower authorities including Customs officers and the Customs Brokers. Judicial discipline requires the department to follow rulings rendered by higher judicial fourms. Therefore no action is warranted against the CHA. - Impugned order is set aside - Decided in favour of appellant. - Appeal No. C/90092/2014-Mum - Final Order No. A/764/2015-WZB/CB - Dated:- 18-2-2015 - Mr. Anil Choudhary, Member (Judicial) And Mr. P.S. Pruthi, Member (Technical) For the Petitioner : Shri Atul Nanda, Sr. Advocate with Shri P. Paranjape, Advocate For the Respondent : Shri M.S. Reddy, Deputy Commissioner (A.R) ORDER Per : P.S. Pruthi The appellant, M/s Trans Sea Services Pvt. Ltd. is a regular Customs Broker/CHA, granted Licence No. 11/100 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce again held that Cocoa powder is not covered by DFIA, vide order dated 16.7.2010, observing that the assessee had only given the department copies of the documents to the Revenue, and the Revenue had written to the Jt. DFGT, Mumbai to confirm the authenticity of the licence. Since no reply was received from the O/o DGFT, reminders were also sent. The DGFT finally vide two separate letters have attested and confirmed the authenticity of the DFIA, the DFIA pre-import list and amendment sheets. However, claim was again rejected on the ground that Cocoa powder was not flour. In the second round, this Tribunal vide Final Order dated 19.11.2010 held that in its earlier order it was categorically held that Cocoa powder is covered under the description of imported items flour. The relevant paras 14, 15 and 17 of the Final order of this Tribunal dated 19.11.2010 are quoted herein for ready reference: - 14. We have carefully considered the submissions made by both the parties. It is clear that this Tribunal had already settled the issue of whether Cocoa Powder is covered under the description of input item Flour permitted under the DFIA issued against export of Biscuit in order N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said fact is also brought to the notice of assessing authority, and the concerned Assistant Commissioner has recorded his comments as follows: - Flour is meant for any powdery substance and that the two terms powder and flour may be considered synonymous, as per CESTAT observation in S.Khusalchand-s case. Thus, from the facts and circumstances, it is evident that there is not failure on part of the CHA, either in making true disclosure or in advising the said importer. Further no case of mis-declaration and suppression is made out, as is evident from the documents on record. It is further stated that the imports were completed during the month of November 12 and the show-cause notice have been issued only on 25.8.2014 which is after two years and is beyond the limitation of 12 months. 3.1 It is further stated that there is no further appeal by the Revenue against the order of this Tribunal in Khushachands case (supra). There is no error in relying on the said ruling, which has been after examination, accepted by the concerned Addl. Commissioner of Customs. It is further urged that suspension can be done only after following the procedure prescribed in the Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs. The appellant also draws attention to the Circular No. 9/2010-Cus dated 8.4.2010 wherein in para 7.2, it is pointed that where immediate suspension action against CHA is required to be taken by the Commissioner of Customs, there is no need for following the procedure prescribed in the regulation, since the action is taken immediately and only in justified cases depending upon the seriousness and gravity of the situation. However, it was decided by the Board that post decisional hearing be given in all cases so that error apparent, if any, can be corrected and opportunity of personal hearing can be given to the aggrieved parties. Further, Board have also prescribed certain time limits in case warranting immediate suspension in the regulation. Accordingly, the investigating authority shall furnish these reports to the Commissioner of Customs, who has issued the CHA licence within 30 days of an offence. The licensing authority shall take steps for immediate suspension within 15 days of receipt of the report and thereafter provide the post decisional hearing within 15 days from the date of suspension. Evidently, in the facts of the present case, the suspension itself by way of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s not challenged on merits, its ruling holds till today. Therefore, there was no reason for the department to challenge the imports of Cocoa Powder made by the appellant against DFIA Licenses read with amendment sheets issued by DGFT which only contain the word flour and did not specify the tariff item number of any of the goods mentioned in the License.. The contentions have force. We also note that the DGFT Authorities at Mumbai, where most of the imports took place, did not confirm to the Customs that Cocoa powder cannot be imported under the amendment sheets. 5.1 We have discussed the details of the case as above only because, in our view, it would be very relevant in examining the role of CHA, which is the subject matter in the present case. We have seen that the Bill of Entry under which imports of Cocoa Powder were made were assessed finally by the Assistant Collector (A C) with the following remark: As per A/c group VIIA order in file No. S/16-MISC-1034/09 GR.VII and report from Institute of Chemical Technology dt. 24.12.09 issued by Dr. U.s. Annapure, Matunga, Mumbai. Flour may be considered Synonymous as per CESTAT observation in the case of M/s. Khushalchand Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llenged and therefore became binding on all lower authorities including Customs officers and the Customs Brokers. Judicial discipline requires the department to follow rulings rendered by higher judicial fourms. Therefore no action is warranted against the CHA. 6. Having considered the rival contentions, we find that in the case of Worldwide Cargo Movers (supra), it was a case of revocation and not suspension and further it was a case of mis-declaration and fraud by the CHA and its employees, which are not the facts obtaining in the present case. As such, we find that this ruling is not applicable in this appeal. We further hold that there is a complete absence of conditions precedent for exercise of powers by the Commissioner for suspending the licence of the appellant, as an interim measure. We further hold that the impugned order is in conflict with the direction of the CBE C issued vide Circular dated 8.4.2010. We further find that in the facts of this case, the ruling of the Hon'ble Bombay High Court in the case of Babaji Shivram Clearing Carriers (supra) is squarely applicable. Thus, we set aside the impugned order dated 24.09.2014, releasing the interim suspensions ..... X X X X Extracts X X X X X X X X Extracts X X X X
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