TMI Blog2023 (6) TMI 1092X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 for a period of two years w.e.f. 24/01/2022 - The ICD could not come into operation immediately after issuance of the said Notification due to non-allotment of location code by the competent authority. Correspondences have been exchanged between the appellant and the Department from time to time in this regard but no positive result has emerged. The appellant was, however, intimated through order dt. 16/02/2023 about the revocation of the permission granted earlier on 24/01/2022 pursuant to a survey conducted on 08.2.2023. It is the contention of the Revenue that subsequent to the examination of the permission granted while issuing location code, difficulties that would be encountered once the said area becomes operational, came to the knowledge of the Department pursuant to the survey conducted on 08.2.2023 and accordingly, the permission was withdrawn with a liberty to the Appellant to re-apply after compliance with the observation mentioned in the said Order. We do not find emergence of any new facts after the Notification was issued on 24.01.2022 that has spelt out in the revocation order; the existence of the manufacturing unit in the basement of the Customs notified are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 2023 - Final Order No. 20607/2023 - Dated:- 21-6-2023 - DR. D.M. MISRA, MEMBER (JUDICIAL) AND MRS. R. BHAGYA DEVI, MEMBER (TECHNICAL) Ms. Neethu Joseph and Ms. Nivedha Mohan, Advocates for the appellant. Mr. Rajiv Kr. Agrawal, Commissioner(AR) for the respondent. ORDER This is an appeal filed against order dt. 16/02/2023 passed by the Commissioner of Customs, Bengaluru revoking the approvals granted to Appellant for operating Inland Container Depot(ICD) under Section 8, Section 45 of the Customs Act, 1962 and Regulation 10 of Handling of Cargo in Customs areas Regulations,2009(HCCAR, 2009 for short).. 2.1. Briefly, stated the facts of the present case are that the appellant are engaged in providing warehouse and logistic services i.e. creation, operation and expansion of Inland Container Depots (ICD), Container Freight Stations (CFS), Air Freight Stations (AFS) and such other facilities related to export and import of cargo. As part of its business activities, they have proposed to set up an ICD and logistic support at Iggalur, Anekal Taluk, Bengaluru in the fifteen acres of land allotted by the Govt. of Karnataka, for which necessary approvals have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... After verification from time to time and on removing the objections pointed out in the inspection reports in granting the permission for operationalization of ICD, the Commissioner of Customs, by Notification No.01/2022(NT) dt. 24/01/2022 notified the premises mentioned in the said notification for operation as an ICD and also necessary approvals have bee granted under Section 45 of the Customs Act, 1962 read with Regulation 10 of (HCCAR, 2009). Thereafter correspondences have been exchanged between the appellant and Department about compliance of certain requirements necessary for operationalization of the ICD, which according to the appellant were complied from time to time. The appellant wrote a letter to the Joint Secretary for issuance of a notification for commencement of the operation by the ICD. In consequence to a survey that was conducted by the Customs authorities to verify the infrastructure on 08/02/2023, the Commissioner abruptly on 16/02/2023 revoked the permission granted earlier vide Notification No.01/2022(NT). Against the said revocation, even though a letter addressed to the Principal Chief Commissioner on 12/04/2023 to reinstate the approvals earlier granted, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... allegation of violation of any of the conditions, is legally unsustainable. Further she has submitted that there is no bar under any of the provisions of the law for functioning of the manufacturing unit in the customs area. 3.4. She has submitted that the present order has been passed revoking the approvals granted under section 8, Section 45 of Customs Act,1962 read with Regulation 10 of (HCCAR, 2009) is in gross violation of principles of natural justice. It is her contention that in terms of Regulation No.11(1) of the HCCAR, 2009, the Principal Commissioner of Customs/ Chief Commissioner is empowered to suspend or revoke the approval for appointment of a Customs Cargo Service Provider(CCSP), after following the procedure prescribed under Regulation 12 of HCCAR, 2009. She has submitted that in terms of Regulation 12, the Principal Commissioner of Customs is required to issue a notice in writing stating the grounds for suspension/revocation of approvals granted to CCSP; therefore the order passed by the Commissioner is unsustainable in law. Further she has submitted that the verification report relied upon by the Commissioner post survey dt. 08/02/2023 was not made available t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orrespondences with Board, it has been realized that continuation of such permission in the present status would create future complications like the input and output goods of the manufacturing Unit will invariably pass through the customs notified area. He has placed the communication received from the Board dt. 06/01/2023 in response to the email of the Commissioner dated 22.11.2023 raising doubts on the subject. 4.3. Responding to the arguments that the Commissioner does not have the power to revoke the approvals/denotify the customs area, he submits that such powers are vested with the Commissioner under the Act and Rules and Regulations made thereunder and referred to the Circular No. 20/21-Cus dated 16.6.2021. 5. Heard both sides and perused records. 6. We find that the present issue revolves in a very narrow compass i.e. whether revocation Order dt. 16.02.2023 passed by the Commissioner is in accordance with law. 7. We find after prolonged verification and inspection of the proposed ICD premises commencing from the year 2016 by the Customs Department and taking note of necessary rectifications carried out by the appellant from time to time on the objections raise ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... customs area. . Section 45. Restrictions on custody and removal of imported goods - (1) Save as otherwise provided in any law for the time being in force, all imported goods, unloaded in a customs area shall remain in the custody of such person as may be approved by the Principal Commissioner of Customs or Commissioner of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. (2) The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force,- (a) shall keep a record of such goods and send a copy thereof to the proper officer; (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer or in such manner as may be prescribed. (3) Notwithstanding anything contained in any law for the time being in force, if any imported goods are pilfered after unloading thereof in a customs area while in the custody of a person referred to in sub-section (1), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... area is well within the knowledge of the department as is evident from the letter dated 19.3.2021 of the Joint Commissioner to the Appellant pursuant to the visit of the Commissioner. It is the contention of the Revenue that subsequent to the examination of the permission granted while issuing location code, difficulties that would be encountered once the said area becomes operational, came to the knowledge of the Department pursuant to the survey conducted on 08.2.2023 and accordingly, the permission was withdrawn with a liberty to the Appellant to re-apply after compliance with the observation mentioned in the said Order. We do not find emergence of any new facts after the Notification was issued on 24.01.2022 that has spelt out in the revocation order; the existence of the manufacturing unit in the basement of the Customs notified area has been raised in the inspection reports. Consequent to the observation in the letter dated 21.3.2021 it was sterilised and artificially separated from the proposed customs notified area to enable the department to declare it the premises as Customs Notified area. Now, the argument of the Revenue is that there would be some GST implications if b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... where no such statement has been received within the time-limit specified in the notice referred to in sub-regulation (1), the Assistant Commissioner or Deputy Commissioner of Customs may inquire into such of the grounds as are not admitted by the Customs Cargo Service provider. (3) The Assistant Commissioner or Deputy Commissioner of Customs shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings and he may also put any question to any person tendering evidence, for or against the Customs Cargo Service provider, for the purpose of ascertaining the correct position. (4) The Customs Cargo Service provider shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings and where the Assistant Commissioner of Customs or Deputy Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) At the conclusion of the aforesaid inquiry, the Assistant Commissioner of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing note of the fact that the Appellant has made huge investment in this regard, and the ICD could not be made operational even though the necessary infrastructure is in place since 2017, we direct the Department to issue a notice to the appellant within a week s time from the date of receipt of this order raising all issues clearly stating the grounds for proposed action. Also, copy of the survey report dated 08.2.2023 be issued to the Appellant, if not delivered. The learned advocate for the appellant undertakes to file their reply within one week from the date of receipt of notice even though the time limit for filing reply prescribed under the said Regulation 12 of HCCAR, 2009 is thirty days. On receipt of the reply to the Notice and after affording an opportunity of hearing to the appellant, the learned Commissioner should decide the issue maximum within a fortnight thereafter. Both sides to cooperate in completing the adjudication process as expeditiously as possible. 15. In view of the above, the impugned Order dated 16.2.2023 is set aside and the Appeal is allowed by way of remand. (Operative portion of this order was pronounced in open court on conclusion of the hear ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
