Allowed

Cochin Air Cargo Clearing House v. Commissioner of Customs

Kerala HC8 Jul 2021Cus.Appeal/5/2021

Case brief

AI extract

What is this about?

The High Court allowed the appellant's appeal against the CESTAT's direction to apply afresh for a Customs House Agent licence. The Court held that since all adverse orders were set aside by the Tribunal, the appellant was entitled to consideration of the existing renewal application without requiring a new one.

What did the court decide?

The direction of the Tribunal directing the appellant to apply afresh for the CHA licence is set aside; the existing renewal application is to be considered.

Cochin Air Cargo Clearing House Vs Commissioner of Customs — Customs and Excise | Kerala HC (2021)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE S.V.BHATTI

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THE HONOURABLE MR. JUSTICE BECHU KURIAN THOMAS THURSDAY, THE 8^TH DAY OF JULY 2021 / 17TH ASHADHA, 1943 CUS.APPEAL NO. 5 OF 2021

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FINAL ORDER NO.20445/2021 OF THE CESTAT BANGALORE

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APPELLANT/S:

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M/S.COCHIN AIR CARGO CLEARING HOUSE DOOR NO.30/369 A, (OPPOSITE NAVAL AIR PORT), MATSYAPURI, COCHIN-682 029, REPRESENTED BY ITS MANAGING PARTNER KOCHURANI, AGED 55 YEARS, W/O.MARIYA DAS.

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BY ADVS. P.A.AUGUSTIAN SMT.SWATHY E.S.

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RESPONDENT/S:

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COMMISSIONER OF CUSTOMS (PREVENTIVE), 5TH FLOOR, CATHOLIC CENTRE, BROADWAY, COCHIN-682 031.

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OTHER PRESENT:

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SR SC SREELAL WARRIER

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THIS CUSTOMS APPEAL HAVING COME UP FOR HEARING, THE COURT ON 08.07.2021 DELIVERED THE FOLLOWING:

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Customs Appeal No.5/2021

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J U D G M E N T

S.V. Bhatti, J.

Heard learned Advocates Mr. P A Augustine and Mr. Sreelal Warrier for the parties.

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The appellant before the Customs, Excise & Service Tax Appellate Tribunal (CESTAT) in File No.C/20445/2020 has filed the instant Customs Appeal under Section 130 of the Customs Act, 1962 (for short 'the Act) aggrieved by the following condition stipulated on the appellant for securing a CHA licence. To appreciate the controversy, the portion by which the appellant is aggrieved, and the instant appeal filed to the said limited extent, we preface in the beginning the relevant portion:

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“The impugned order (i.e., Order dated 16.11.2020 in Order-inoriginal No.01/2020 CusTech.CCP.Kochi) is passed on the same lines as was passed by the learned Commissioner on 19.05.2020. In view of this, we are of the considered view that the

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Customs Appeal No.5/2021

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impugned order is not sustainable in law and there fore we set aside the same. Since the appellant's CHA licence has already expired on 13.04.2020, we direct the appellant to apply afresh for their CHA licence and thereafter the learned Commissioner will decide afresh the renewal of the licence of the appellant in accordance with law. With these directions, we dispose of the present appeal. ” (emphasis supplied)

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The appellant is a Customs House Agent, licence has been granted as per Annexure-A dated 14.04.2010 and the licence is valid for ten years from 14.04.2010. On 11.10.2019 the appellant applied for renewal in Annexure-B to the respondent. While matters stood thus, the respondent through Annexure-C order dated 21.04.2020 ordered temporary suspension of licence of appellant under Regulation 16 of the Customs Broker Licensing Regulations, 2018 and denied renewal of Customs Broker licence No.01/2012 dated 12.02.2010. The provisional order in Annexure-C is confirmed in Annexure-D dated 19.05.2020. The appellant filed Customs Appeal No.20179/2020

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before the CESTAT, Bangalore. The Appellate Tribunal, through final order in Annexure-F held as follows:

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“Further we find that the show-cause notice issued to the appellant by Trichy Commissionerate is pending before the High Court of Madras (Madurai Bench). In view of the above, we are of the considered view that during the pendency of the enquiry ordered by the Commissioner of Customs, the Commissioner should not have denied the renewal, more country on account of spread of pandemic Covid 19 during which the appellant is supposed to pay the wages to its employees as per the instruction issued by the Government of India. Further, keeping in view the livelihood of the appellant and the fact that enquiry is still pending regarding the violation of regulations against the appellant, we are of the view that the impugned order is not sustainable in law and therefore we set aside the same and direct the Commissioner of Customs to allow the appellant to carry on his business of CHA during the pendency of enquiry except at Trichy Commissionerate where the alleged violation took place. We further expect that the Inquiry Officer will conclude the inquiry expeditiously and will take into account the decisions rendered by the Tribunal and High Court cited supra while concluding the inquiry. In view of this, the present appeal is disposed of on above terms."

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Customs Appeal No.5/2021

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3.1 The appellant could not derive the benefit of the

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order in Annexure-F inasmuch as the respondent, through order dated 16.11.2020 in Annexure-I, made final orders and

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operative portion reads thus:

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“57. On the basis of facts, findings and discussion as above, and in exercise of the powers conferred upon me under the provisions of the Customs Brokers Licensing Regulations, 2018, I hereby:

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a) Uphold the decision issued vide Suspension Order dated 21.4.2019 (Issued from File C No.VIII/48/11/2020 CCP Tech) not to renew the licence No.01/2012 dated 12/02/2012 and Revoke the Licence No.01/2012 dated 12/02/2012 (PAN AAFFC1130Q) under Regulation 17, read with Regulation 14 of CBLR 2018.

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b) Forfeit the security deposit under Regulation 14 of CBLR 2018.

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c) Impose penalty of `50,000/- under Regulation 18 of CBLR 2018."

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3.2 The appellant filed appeal before the CESTAT in File No.C/20445/2020 and, as noted above, the Tribunal set aside the

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order dated 16.11.2020 (Annexure-I). However, called upon the

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appellant to apply afresh for CHA Licence. After examining the chronology of events, implication of orders of the Appellate Tribunal made from time-to-time, we are of the view that the Tribunal, by observing as noted above, failed to exercise the jurisdiction conferred on it while disposing of the appeal filed by the appellant. Hence the instant Customs Appeal.

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Advocate P A Augustine argues that the CESTAT, on one hand, has given the relief to appellant by setting aside the order dated 16.11.2020 and simultaneously denied the fruits of the decision of the Tribunal in Annexure-J by directing the appellant to apply afresh for CHA licence. Elaborating his submissions, he argued that the Tribunal ought to have taken note of the order in Annexure-F made at the first instance, the effect of Annexure-I order dated 16.11.2020 and the consequential binding order between the parties. According to him, all the orders made against the appellant are set aside,

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there is no need for making fresh application for CHA licence, and is not a requirement under applicable regulations as well. The appellant, if applies afresh then the appellant is denied the participation in the Customs Houses in which the appellant was already recognized at the time of making the order in Annexures-C and D. The case of the appellant for renewal will have to be considered by reverting to the application for renewal made in Annexure-B. Therefore, he prays for setting aside the observation in Annexure-J to the said limited extend and the respondent considers Annexure-B application of the appellant for renewal.

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Learned Counsel Mr.Sreelal Warrier does not dispute the chronology of events taking place in the matter, and try to justify the final directions issued by the Tribunal. He alternatively argued that the Department is waiting for the appellant to apply afresh for CHA licence inasmuch as while

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adjudicating CESTAT, directed consideration of appellant's case only when the application is made afresh.

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We have perused the record and while examining the desirability, we appreciate the orders made by the CESTAT, both at the time when the order is made and appreciate the orders by giving cumulative effect to each one the orders made by the Tribunal and findings recorded. The simple affect of the adjudication of CESTAT is that the orders of respondent, either placing the appellant under suspension or denying renewal or confirming the decisions taken, are all set aside. There is nothing against the appellant as on date warranting the appellant to apply afresh for CHA licence. The directions are inconsistent with final orders of the CESTAT. The appellant, therefore, is entitled for consideration of application made in Annexure-B for renewal. We set aside the following directions issued by the Tribunal in Annexure-J:

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“ Since the appellant's CHA licence has already expired on 13.04.2020, we direct the appellant to apply afresh for their CHA licence and thereafter the learned Commissioner will decide afresh the renewal of the licence of the appellant in accordance with law. With these directions, we dispose of the present appea l. ”

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While dictating the judgment we have informed the learned Standing Counsel to communicate to respondent to pass orders on Annexure-B forthwith. We are informed by him that needful will be done by the competent authority/the respondent within ten days from today. The statement is placed on record. The appeal is allowed as indicated above.

Sd/-

S.V.BHATTI

JUDGE

Sd/-

BECHU KURIAN THOMAS

JUDGE

jjj

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Customs Appeal No.5/2021

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APPENDIX OF CUS.APPEAL 5/2021

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PETITIONER ANNEXURE

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ANNEXURE A TRUE COPY OF THE CB LICENSE. ANNEXURE B TRUE COPY OF THE APPLICATION FOR EXTENSION OF CB LICENSE DATED 11.10.2019. ANNEXURE C TRUE COPY OF THE SUSPENSION ORDER DATED 21.04.2020. ANNEXURE D TRUE COPY OF THE REVIEW ORDER DATED 19.05.2020. ANNEXURE E TRUE COPY OF THE JUDGMENT DATED 29.05.2020 IN WPC NO.10589/2020. ANNEXURE E TRUE COPY OF THE JUDGMENT DATED 29.05.2020 IN WPC NO.10589/2020. ANNEXURE F TRUE COPY OF THE FINAL ORDER NO.20307 OF 2020 DATED 14.07.2020. ANNEXURE G TRUE COPY OF THE JUDGMENT DATED 16.10.2020 IN WA NO.1312/2020. ANNEXURE H TRUE COPY OF THE JUDGMENT DATED 03.12.2020 IN WRIT APPEAL NO.1504/2020. ANNEXURE I TRUE COPY OF THE ORDER IN ORIGINAL NO.1/2020 DATED 16.11.2020. ANNEXURE J TRUE COPY OF THE FINAL ORDER NO.20036/2021 DATED 18.02.2021 IN CA NO.C/2045/2020.

Cochin Air Cargo Clearing House v. Commissioner of Customs

Case brief

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Cochin Air Cargo Clearing House v. Commissioner of Customs

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