TMI Blog2017 (1) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... spension order was revoked and the CHA was allowed to operate - reliance was placed on the decision of the case of Bombay Shipping Agency Vs. Commissioner of Customs (General), Mumbai [2014 (3) TMI 317 - CESTAT MUMBAI],where it was held that when the Department is unable to complete it’s enquiry at given time of ten months, the Customs Broker should not be made suffer - the Department cannot be allowed to continue the prohibition on the appellant. Appeal allowed - decided in favor of appellant. - APPEAL No.C/88377/14 - Order No.A/88080/16/CB - Dated:- 21-6-2016 - Mr. Ramesh Nair, Member (Judicial) And Mr. C.J. Mathew, Member (Technical) Shri A.K. Prabhakar, Advocate, for Appellant Shri D.K. Sinha, Assistant Commissioner (A.R.), for Respondent Per: Ramesh Nair: The fact of the case is that the appellant is a Customs Broker holding Licence No. R-01/DEL/CUS/2006 issued by New Delhi Customs and is transacting Customs Broker business at Mumbai Customs Zone under Regulation 7(2) of Customs Broker Licensing Regulations, 2013 (CBLR-2013) w.e.f. 23.01.2012 under C.B. No. 11/1626. The Customs Broker is a proprietorship firm having proprietor Shri Prem Kumar Singh. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case is contrary to law lay down in case laws. He further submits that even if time period is not stipulated, the action is required within the reasonable period. In this support he placed reliance in the following judgments:- (i) State of Punjab Vs. Bhatinda District Co-op. Milk P. Union Ltd. [2007 (217) ELT 325 (SC)] (ii) A.B. Consultants Vs. Commissioner of Customs, New Delhi [2014 (310) ELT 917 (Tri.-Del.)] (iii) Commissioner of Customs (Sea Port Import), Chennai Vs. CESTAT, Chennai [2014 (310) ELT 673 (Mad.)] On the preliminary objection by the learned A.R. that the appeal is not maintainable as the same was filed against prohibition order, whereas the appeal lies only against the order of suspension or revocation of the Customs Broker licence. He submits that as per Section 129A of the Customs Act, 1962 any decision or order passed by the Commissioner of Customs as an adjudicating authority is appealable before this Tribunal. In the present case the Commissioner has passed the prohibition order in the capacity of adjudicating authority as the entire process of adjudication such as granting of personal hearing, accepting the reply, thereafter by giv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lable under Section 129A of the Act in the light of the above judgments. He submits that under Regulation 23, the Commissioner of Customs has been vested with the power to prohibit any Customs Broker from working in one or more sections of the Customs Stations. Therefore there is no infirmity of the prohibition order passed by the Commissioner. He further submits that as per sub-Section (2) of Section 146, Board is empowered to frame Regulations for the purpose of the appeals, if any, against an order of suspension or revocation of a licence. He submits that the impugned order is neither suspension nor revocation order of the licence, therefore same is not appealable under Section 129A of the Customs Act. He submits that in the case of S.R. Sale Co. (supra) Hon'ble High Court of Bombay dealt with the provision of Section 129A Section 146(2) of the Customs Act and held that prohibition order is not appealable before this Tribunal. 4. We have carefully considered the submissions made by both the sides. We find that before proceeding on the merit of the case, we would like to address the maintainability issue that whether the prohibition order passed by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 129A. In view of the clear distinction between both the Regulations as regard the provision of filing appeal, the decision of Hon'ble Delhi High Court is clearly applicable in the present case. As the present case is also dealing with the Regulation of CBLR, 2013, all the judgments relied upon by the learned A.R. are relate to appeal provision made under CHALR, 2004, therefore all the judgments stand distinguished. We are therefore of considered view that this appeal is clearly maintainable against the prohibition order. 5. As regard the prayer of the appellant for setting aside the prohibition order, we find that the offence report was made and forwarded by ICD Mulund to the Commissioner of Customs, NCH, Mumbai-I on 07.03.2014. The prohibition order was issued on 20.03.2014 and forwarded the case to Delhi Commissionerate for further action. We find that the prohibition has been continued vide the impugned order dated 15.04.2014. However after passing of more than two years no enquiry proceeding has been initiated. As per Regulation 20 of CBLR, 2013 read with CBEC Circular No. 09/10-Cus. dated 08.04.2010 overall time limit for concluding the enquiry provided is nine months ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng Agency Vs. Commissioner of Customs (General), Mumbai [2014 (299) ELT 352 (Tri.-Mumbai)] 6. Therefore, in these circumstances, we are of the view that, without completing the enquiry, the charges against the appellant could not be confirmed. In view of the fact that the appellant has an unblemished track record and also considering the fact that his licence has been suspended for a period of more than 10 months or so, we are of the view that there is no need to continue with the suspension. Similar views have been taken by this Tribunal in the cases of R.S. Yadav Company vs. Commissioner of Customs, New Delhi, K.S. Sawant Co. vs. Commissioner of Customs (General), Mumbai cited supra. 7. Accordingly, we revoke the suspension of the CHA licence done by the impugned order. The Customs is at liberty to conduct the enquiry against the appellant-CHA in terms of Regulation 22 of the CHALR, 2004 and to take appropriate action in accordance with law on completion of such enquiry. 6. In view of the above judgments, this Tribunal has consistently taken view that when the Department is unable to complete it s enquiry at given time of nine months, the Customs Broker shou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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