TMI Blog2018 (11) TMI 466X X X X Extracts X X X X X X X X Extracts X X X X ..... fact that when Regulation 5 is not applicable to the appellant, there was no requirement to file any affidavit by the appellant. This gets further supported from the first letter dated 01.01.2017 filed by the appellant, to the department, wherein they have prayed to extend the validity of licence for five years i.e. for the period which was lost from the date of suspension i.e. 15.12.2010 till the date of original validity i.e. 15.12.2015. The license is restored - appeal allowed - decided in favor of appellant. - Customs Appeal No.51178/2018-Customs - Final Order No.53242/2018 - Dated:- 6-11-2018 - SHRI ANIL CHOUDHARY, MEMBER (JUDICIAL) And SHRI BIJAY KUMAR, MEMBER (TECHNICAL) Shri Jitin Singhal, Advocate for the appellant. Shri R.K. Majhi, DR for the respondent ORDER Per Anil Choudhary: The appellant herein, is in appeal against the impugned order-in-original no. 22/KB/Policy/2018 dated 30.03.2018, whereby the learned Commissioner revoked the Customs Broker Licence No. R-91/2006 of the appellant and further forfeited the security amount of ₹ 75,000/- furnished by the appellant. 2. The brief facts of the case are that, appellant is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt along with one Shri Prashant Gupta as importer‟ of the subject goods and proposing to demand of customs duty with interest and penalty under various provisions of Customs Act, 1962. After some time, another show cause notice dated 14.09.2012 under Regulation 22(1) of CHLR, 2003 issued to the appellant with respect to CHA proceedings, whereby an inquiry officer was appointed and it was alleged that appellant had contravened the provisions of Regulation 13(a), (d) and (o) of the CHLR, 2004. Once inquiry officer was appointed through notice dated 14.09.2012, the appellant had filed his reply dated 11.10.2012 and prayed for early disposal of his case as the validity of his licence was only upto 31.12.2015. However, instead of taking any decision, a letter dated 22.05.14 was sent to the appellant giving information regarding changing of the Inquiry Officer. Thereafter, personal hearing was fixed on 30.06.14 which was duly attended by the appellant and further submissions were filed with prayer for revocation of suspension of his CHA Licence. Orders were reserved by the Inquiry Officer. However, no order came to be passed by the Inquiry Officer till June 2015 i.e. even after ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... came to know about the pendency of FIR No. 426 dated 17.11.14 filed by REIC in Delhi Police, EOW, only at the time of issuance of F card to the appellant. It is also the case of the department that further enquiry in the matter was made by it vide letter dated 08.08.17 from the Principal Commissioner of Customs, ACC (Import), to ascertain whether any prosecution proceedings has been launched against the appellant, to which the Joint Commissioner (Adjudication), ACC, Import informed vide letter dated 23.08.17 that the allegations (SCN dated 17.11.2011) against the appellant were adjudicated vide Order-in-Original No. 49/NLB/Commr/2013 dated 31.10.13, whereby penalty of ₹ 67,17,015/- was imposed on the appellant under section 112 and114A of the Customs Act, 1962. It is also now the case of the department that they were informed that prosecution proceedings had been launched against the appellant pertaining to violation of the Customs Act, 1962 and, further inquiry in the matter revealed that a criminal complaint was pending against the appellant, since 2015, before the competent Court of Law. Thus, it appeared to the department that the appellant had given false affidavit and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant by the Assistant Commissioner vide letter dated 05.02.18 for filing his reply. In the said Inquiry Report, it was held by the Assistant Commissioner of Customs, General Commissionerate, New Custom House, New Delhi that the appellant violated the provisions of Regulation 5(d) and 5(e) of CBLR 2013 and he was liable to penal action as proposed in the Show Cause Notice. The appellant had filed his reply dated 09.03.18 to the Inquiry Report. The learned Commissioner of Customs (General), NCH, New Delhi passed impugned Order-in-Original No. 22/KB/Policy/2018 dated 30.03.18, revoking the CB Licence issued to the appellant and ordered for forfeiture of security amount of ₹ 75,000/-, furnished by the appellant on the ground that the appellant had violated Regulation 5(d) and 5(e) of the CBLR 2014 by filing wrong declaration. 3. Being aggrieved, the appellant is before this Tribunal. 4. The learned Counsel for the appellant argued that the CB licence was unauthorizedly and illegally cancelled by the licencing authority, through adjudication order dated 13.04.16, which came to be set aside by this Tribunal vide Final Order dated 13.12.16. Once the order of the learned C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5820-55821/2017-Cu(DB) dated 7.8.2017, had held in Para 8, that even on the principle of preponderance of probability, the case fails much short of required proof, and set aside the duty demand and penalty, except imposing token penalty of ₹ 5 Lakhs on the appellant. It is further respectfully submitted that insofar as the criminal prosecution is concerned, the same is a complaint filed by Commissioner of Customs Air Cargo (Import), NCH, Near IGI Airport, New Delhi [Complainant) and, therefore, department cannot plead their ignorance about pendency of the said Criminal Complaint. The appellant also placed reliance on the judgment of Hon ble High Court of Calcutta in the case of Montosh Kumar Saha Vs Union of India, 2014 (309) ELT 440 (Cal.) wherein the Hon ble High Court held that CHA licence cannot be denied merely on the ground of issuance of charge sheet against CHA in criminal court, admittedly when he is not yet convicted. It was also argued that the learned Commissioner has totally overlooked the facts already available on record, which clearly established that the appellant had, initially, never prayed for renewal of his licence but, his prayer was for restoring the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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