M/s Atharva Global Logistics vs CC, (I&G) New Delhi

The facts leading to filing of this appeal are, in brief, as under.

1.1 The appellant is a customs broker (earlier known as Customs House Agent) operating under a licence issued by Commissioner of Customs

(Imports & General), New Customs House, Delhi. The Commissioner vide Order-in-Original dated 6-12-2013 issued under Regulation 20(2) of

Customs House Agents Licensing Regulations, 2004 [corresponding to Regulation 19(1) of Customs Brokers Licensing Regulations, 2013] has

suspended the licence on the ground that the appellant failed to exercise supervision to ensure proper conduct of his employees in the transaction of

business and accordingly is responsible for the misconduct of his employees.

1.2 M/s. Harsh Enterprises, Mumbai, had imported a consignment declared to be containing DVD Parts - DVM3 - MN1W†and they filed the bill of

entry through the appellant for its clearances. The goods on examination were found to be DVD Pick Up Units and according to the Department, the

declared value of the goods was also on lower side. According to the customs, the appellant as CHA has colluded with the importers and has failed to

discharge his obligations as CHA as envisaged under Customs House Agents Licensing Regulations, 2004 as well as Customs Brokers Licensing

Regulations, 2013. Accordingly pending the completion of inquiry, the Commissioner vide order dated 6-12-2013 suspended the Appellant’s licence

on the basis of the suspension order dated 6-12-2013 issued by the Commissioner of Customs (Import & General), New Customs House, New Delhi,

the Commissioner of Customs (General), Mumbai issued a prohibitory order dated 12-11-2013 prohibiting the appellant to operate in the Customs

House at Mumbai. Subsequently a post-decisional hearing was given and the order dated 6-12-2013 was confirmed vide Order-in-Original No.

11/POLICY/NLB/2014, dated 11-2-2014. Against this order of Commissioner, this appeal has been filed praying for setting aside of the orders dated

6-12-2013 and 11-2-2014, passed by Commissioner of Customs (Imports & General), New Delhi and also the order dated 12-11-2013, passed by

Commissioner of Customs (General), Mumbai.

Heard both the sides.

Shri B.R. Tripathi, Advocate, the learned Counsel for the appellant, assailed the impugned orders and pleaded that though the licence had been

suspended since 6-12-2013 and suspension was confirmed after post-decisional hearing on 11-2-2014, the notice for revocation of licence has still not

been issued in terms of Regulation 20(1) of the Customs Broker Licensing Regulations, 2013, though in terms of this regulation, the Commissioner is

required to issue a notice to the Customs Broker within a period of 90 days from the date of receipt of offence report stating the ground on which it is

proposed to revoke the licence, that in view of this, there is no justification for continued suspension of the licence and that the impugned order

suspending the appellant’s licence and confirming the suspension may please be set aside.

Shri Amresh Jain, the learned DR, pleaded that the misconduct of the appellant is of serious nature, that for this reason only, his licence had been

suspended and that in view of this, there is no justification for revoking the suspension.

We have considered the submissions from both the sides and perused the records.

The Customs House Licence of the appellant had been suspended under Regulation 20(2) of the Customs House Licensing Regulations, 2004

[Regulation 19(1) of Customs Brokers Licensing Regulations, 2013] vide order-in-original dated 6-12-2013 and subsequently after giving post-

decisional hearing, the suspension order was confirmed vide order dated 11-2-2014. Under Regulation 19(2) of Customs Broker Licensing

Regulations, where a licence is suspended under Regulation 19(1), the Commissioner of Customs shall, within 15 days from the date of such

suspension, give an opportunity of hearing to the Customs broker whose licence has been suspended and may pass such order, as deemed fit, either

revoking the suspension or continue it, as the case may be, within 15 days from the date of hearing granted to the Customs broker. In terms of proviso

to Regulation 19(2) in case the Commissioner passes an order for continuing the suspension, the further procedure thereafter shall be as provided in

Regulation 20. Thus, once the licence of a Customs broker has been suspended and if after granting post-decisional hearing within 15 days from the

date of suspension, the Commissioner decides to continue the suspension, Regulation 20(1) becomes applicable. In terms of Regulation 20(1) the

Commissioner of Customs shall issue a notice in writing to the Customs Broker within 90 days from the date of receipt of the office report, stating the

ground on which it is proposed to revoke the licence or impose penalty on him and the Customs broker is required to submit his reply within 30 days.

On receipt of the reply of the Customs broker, or if no reply has been received, within period of 30 days from the date of issue of the notice, the

Commissioner is required to nominate a Deputy/Assistant Commissioner of Customs for inquiring into the grounds which are not admitted by the

Customs broker. Final decision is required to be taken by the Commissioner on the basis of the inquiry report of the Deputy/Assistant Commissioner

and after hearing the Customs broker in respect of the same. Thus, where the licence of a Customs broker has been suspended and it has been

decided to continue the suspension, the issue of notice within 90 days from the date of receipt of the offence report is mandatory. In this case, as

mentioned in para 2 of the order dated 6-12-2013, the offence report mentioning the alleged misconduct of the appellant had been received from the

Directorate General of Revenue Intelligence on 7th October, 2013 and as such the investigation into the matter regarding the role of the Customs

broker is complete, but the required notice in terms of Regulation 20(1) was not issued within 90 days from the date of receipt of the offence report.

The show cause notice was issued only on 17-6-2014, long after 90 days from the date of receipt of the offence report. In view of this, we hold that

there is no justification for continued suspension. The suspension order dated 6-12-2013 confirmed vide order dated 11-2-2014, passed by the

Commissioner of Customs, Delhi is, therefore, are set aside. The appeal is allowed.

(Operative part of the order pronounced in the open Court)