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M/s. Confederation Overseas Clearing Versus Commissioner of Customs (Airport & Admn.) , Kolkata

2016 (8) TMI 672 - CESTAT KOLKATA

Whether confirmation of suspension order under Order-in-Original dated 16.05.2016 is justified as per the provisions of Regulation 19(2) of CBLR, 2013. - Period of limitation - Held that:- No evidence is brought on record by the department that notice for revocation of appellant s licence has been issued to the appellant within 90 days of receipt of Order-in-Original dated 23.03.2016. No irregularity on the part of the appellant has been brought on record from 2011 to the date of confirmation of .....

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the Respondent ORDER Per Shri H. K. Thakur The present Miscellaneous Application for early hearing of Stay Petition and Appeal have been filed by the appellant with respect to Order-in-Original No.KOL/CUS/AIRPORT/ADMN/10/2016 dated 16.05.2016 passed by the Principal Commissioner of Customs(Airport & Administration), Customs House, Kolkata from F.No.S-45-99/1978 Estt, as Adjudicating authority. Under this Order-in-Original dated 16.05.2016 Adjudicating authority has confirmed the suspension .....

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03.2002 and is valid upto 14.03.2007. That in the year 2010 Commissioner of Customs, Mumbai vide permission dated 04.03.2010 allowed the appellant to work in Mumbai Customs Station. That the said licence and permission was issued to the appellant during the currency of Customs House Agent Licencing Regulation, 1984 (CHALR, 84) which got superseded by Customs House Agent Licencing Regulation, 2004 (CHALR, 2004). That Customs Broker Licencing Regulation (CBLR 2013) came into operation as per Notif .....

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vi Kotian. That by an order dated 22.06.2011 Commissioner of Customs (General) Mumbai prohibited the appellant from transacting any CHA business in Mumbai Customs Zones I, II & III under Regulation-21 of the CHALR, 2004. That on 07.07.2011 by an order No.190/2011, Commissioner of Customs, Kolkata suspended the CHA licence of the appellant under Regulation 20 (2) of CHALR, 2004, which was confirmed by Commissioner of Customs, Kolkata vide Order-in-Original No.KOL/CUS/AIRPORT/ADMN/4/2011 dated .....

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f the CESTAT implemented. That by an order dated 02.12.2011 appellant was allowed to continue to work as a CHA. That the entire proceedings under CHALR, 2004 also became time barred under Regulation 20 & 22 as no show cause notice for revocation of CHA licence was issued within 90 days from the date(07.07.2011) of the offence Report. 2.2 That appellant received a show cause notice dated 08.06.2012 for revocation of CHA licence and appellant moved Calcutta High Court by filing WP No.571 of 20 .....

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in respect of those 10 Bills of Entry filed previous to B/E No.2516198 dated 01.01.2011. That the said show cause notice dated 25.03.2015 was Adjudicated by Commissioner of Customs, Mumbai by an Order-in-Original dated 23.03.2016 under which a penalty of ₹ 5.00 Lakh is imposed upon the appellant against which appellant has preferred an appeal before CESTAT, Mumbai. That on receipt of Order-in-Original dated 23.03.2016 CC(Customs), Kolkata by Order No.05/2016 dated 22.04.2016 suspended app .....

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tta High Court and the appellant has continued to work from 2011 till April, 2011. That no suspension/continuation of suspension for the acts done in 2011 without appellant s knowledge, can be taken under CBLR, 2013. That no specific offence report has been received by the Adjudicating authority and no show cause notice has been issued for revocation of appellant s licence within 90 days, as per Regulation 20(1) of the CBLR, 2013. That even if CBLR, 2013 are presumed to be applicable then also c .....

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ster Cargo Services v. CC(Seaport-Import), Chennai [2015 (330) ELT 465 (Tri.-Chennai) 3. Shri S.K.Naskar, AC(AR) appearing on behalf of the Revenue argued that the course of action cannot be considered to be prior to CBLR, 2013 as the Order-in-Original dated 23.03.2016 was received by CC, Customs(Kolkata) on 08.04.2016 and suspension was done on 19.04.2016 as discussed by Adjudicating authority in para-33 of the Order-in-Original dated 16.05.2016. That against this Order-in-Original appellant ap .....

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icating authority. 4. Heard both sides and perused the case records. After allowing Miscellaneous Application (EH) filed by the appellant, appeal is taken up for disposal. The issue involved in the present proceedings is whether confirmation of suspension order under Order-in-Original dated 16.05.2016 is justified as per the provisions of Regulation 19(2) of CBLR, 2013. It is the case of the appellant that the cause of action is for the period prior to CBLR, 2013 and as per the preamble to CBLR, .....

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P No.571 of 2012 filed by appellant. 4.1 In support of the above argument appellant has relied upon Section 159(A) of the Customs Act, 1962 and preamble to CBLR, 2013, reproduced below:- [159A. Effect of amendments, etc., of rules, regulations, notifications or orders. Where any rule, regulation or order made or issued under this Act or any notification or order issued under such rule or regulation, is amended, repealed, superseded or rescinded, then, unless a different intention appears, (a) re .....

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any penalty, forfeiture or punishment incurred in respect of any offence committed under or in violation of any rule, regulation, notification or order so amended, repealed, superseded or rescinded; (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or .....

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ereby makes the following regulations, namely :- 4.1.1 In view of the above provisions action under CBLR, 2013 cannot be taken with respect to an action omitted to be done as per CHALR, 2004. Further for the act of the appellant and his employees on the same issue action of suspension was already taken with respect to B/E No.2516198 dated 01.01.2011. The Adjudication order dated 23.03.2016 passed by CC, Mumbai was with respect to bills of entry filed before 01.01.2011 and for the activities of t .....

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e introduction of CBLR, 2013, no action could have been taken under CBLR, 2013. Confirmation of suspension made by the Adjudicating authority under Order-in-Original dated 16.05.2016 is bad in law and is required to be set aside. It is also held that for the same cause of action a second proceedings cannot be initiated when the matter in the earlier proceedings of suspension and revocation of appellant s licence are pending before Calcutta High Court. It is not coming out of the records before t .....

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