TaxTMI 
TaxTMI 
2017 (1) TMI 404
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....matter was mentioned by one of the learned Counsel holding for Sr. Advocate Shri Atul Nanda seeking that it be heard at earliest as the issue relates to revocation of courier licence and a matter of livelihood is involved. Considering the request made by the learned Counsel, as also the facts, the matter was listed on 02.09.2016 and learned Departmental Representative was informed about the same. Shri Atul Nanda, learned Sr. Counsel appears and accordingly we take up the matter for disposal; directing the learned D.R. to note down the arguments with a direction to argue his case on any day convenient to him. 3. Learned Counsel submits that the issue involved in this case is regarding revocation of courier licence of appellant. It is his submission that the entire issue started with the wrong doing of two of their employees in clearance of silver jewellery item in the guise of courier packages. It is the submission of the learned Counsel that they were issued the show-cause notice at the intervention of Hon'ble High Court of Bombay on a writ filed by them; vide order dated 08,02.2016 the lower authorities were directed to issue show-cause notice and adjudicate the same in acc....
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....ld indicate that paragraph 1 of the show-cause notice at page No. 61, the findings are same. On reading paragraph 12, he would said the paragraph indicates that the clandestine clearance of silver jewellery was effected by active involvement of two operational staff of M/s Aramex Pvt. Ltd., namely Shri Hitesh Narayandas Fofandi and Shri Ravi Sahebrao Kadam in connivance with Shri Hemant Badola and Shri Rahul Vishwanath Khamkar. He would take us through the paragraph 14 wherein specific omission and commission on the part of the appellant has been narrated for directing them to show cause as to why courier licence should not be revoked. 3.6 It is his submission that appellant contested the show-cause notice for revocation of licence by taking various defence; brings to our notice that the said Shri Hitesh Fofandi admitted to his involvement in the illegal clearance of the consignment and the acts committed by him were out of his own accord to satisfy his greed; he submits appellant Company has filed a police complaint. He would submit that they have taken a categorical stand before the lower authorities that the appellant Company had nothing to do with the entire issue as it has ....
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....tions Act there is no provision for holding the appellant vicariously liable for the illegal act of their employees. 3.10 He would take us through the Courier Imports and Exports Regulations, 1998 (herein after referred as Courier Regulations) more specifically to the obligations of appellant as per the Regulation 13. 3.11 He would read the Customs Broker Regulation, 1984 and submit that in the Regulation 29(7), there is a specific provision holding the Custom House Agents licence holder is responsible for the acts of omission and commission of their employees. In the 2nd Regulation of 2004 it is his submission that Regulation 19(8) and CHA Regulation 13, Regulation No. 17 (a), it is provided that the CHA is responsible for the acts of his employees. 3.12 He would take us through the judgement of the Tribunal in the case of V.B. Bhatia & Co. (supra) more specifically the paragraphs 6 and 9 (d). It is also his submission that the Revenue has challenged the Tribunal's order before Hon'ble High Court of Bombay and the Hon'ble High Court had dismissed the same in limine as no question of law arises. It is his submission that the Bench came to a conclusion for the a....
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.... (b) State of Maharashtra Vs Mahboob Allibhoy,1996- 85ELT22-SC (c) Rajkumar Shivhare Vs Dte of Enforcement, 2010-253-ELT-3-SC (d) Commr Vs Singapore Airlines , 2010-259ELT642-Del 4.3 He submitted that in past the Tribunal has not entertained the appeals arising in courier matters and referred to the following decisions: (a) Express Handling Worldwide, 2014-299-ELT-359(Tri-Mum) (b) Indus Express Courier Vs CC, 2008-226 ELT 204-T-Del 4.4 He further submitted that there is a practice of filing representation before Chief Commissioner against order of Commissioner under Courier Regulations,1998 and referred to the decision in the case of Bombino Express Pvt Ltd Vs Chief Commr-Cus,2015-315-ELT-496-Del. 4.5 He submitted that in the appellant s own case earlier they had filed representation before Chief Commissioner and thereafter it was challenged before Hon'ble High Court. According to him provision for representation is sufficient remedy. In this regard he referred to the decision in the case of DHL Express India Pvt Ltd Vs U01,2015-316-ELT-651(Kar). 4.6 He submitted that there is similar provisions under CHALR to make representat....
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....ully considered the rival submissions oral as well as written. We have perused the records and the plethora of judgments relied upon by both the sides. 6. So far as issue of maintainability is concerned, it is squarely covered by our decision in the Bombino Express Pvt ltd Vs CC vide Order dated 23 March,2016, wherein appeal was held as maintainable against the Order-in-Original dated 12.12.2014 passed by the Respondent Commissioner revoking the registration as a Courier and all such contentions were considered in the light of relevant statutory provisions. It was observed that- "4. On behalf of the Revenue, a written submission was tendered along with a compilation of judgments, to submit that that this Appeal was not maintainable in view of the provisions of the Courier Imports and Exports (clearance) Regulations 1998 and the following orders or judgments were relied upon- (i) Express Handling Worldwide Vs. CC, CSI Airport, Mumbai, 2014 (299) E.L.T. 359 (Tri.), (ii) DHL Express India Pvt. Ltd., Vs. Union of India, 2015 (316) E.L.T. 651 (Kar. HC), (iii) Bombino Express Pvt. Ltd. Vs. Chief Commissioner of Cus., Delhi Zone, 2015 (315) E.L.T. 49....
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....lity of the instant appeal. All the other judgments / orders of the Tribunal and of the Hon'ble Bombay High Court were in the context of Customs House Agents Licensing Regulation, in the context of Orders issued under Section 146 of the Customs Act, 1962. None of them involved the issue of maintainability of appeal against an order passed by the Commissioner of Customs as an Adjudicating Authority, under Regulation 10 of Courier Import & Export Regulations, 1998, notified by the Central Board of Excise & Customs, in exercise of powers conferred under Section of the Customs Act, 1962. We have perused Section 146 vis-a-vis Section 157 of the Act. Section 146 provides inter alia as under- "146. Licence for customs brokers (2) The Board may make regulations for the purpose of carrying out the provisions of this section and, in particular, such regulations may provide for ..... (g) The appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeal may be filed." 6. Section 146 specifically provides that the Board may make regulations for the purpose of carrying out the provisio....
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....nd that as the order has been passed by the Commissioner of Customs as an adjudicating authority, this appeal lies before this Tribunal. The adjudicating authority is also defined under Section 2(1) of the Customs Act, 1962 which means an authority competent to pass any order or decision under this Act. It is very clear from the reading of the regulations that they were enacted under the powers of Section 157 of the Customs Act, 1962 for furtherance of activity under the Said Act. Hence, we are of the view that this appeal lies before this Tribunal." Thus, the issue of maintainability was already decided by us while condoning the delay in filing of the instant appeal, and the .attempt of the Revenue to seek review thereof was unwarranted and erroneous. 7. Another preliminary objection was raised by the Revenue that vide Order dated 21.01.2016, representation of the Appellant was rejected by the Chief Commissioner of Customs, and hence, the Tribunal shall not interfere with the impugned Order. We find no merit in this preliminary objection. A representation is not same as appeal. In an order passed on representation, there is no merger with the original order as in....
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....ter part, and certain employees committed gross illegalities. However, we find that it is not the case of the department that the appellant courier company itself was actively involved in any violation by taking help of its employees with intent to evade any duty or prohibition or for any personal gains. We find that there is no dispute on the fact that the named employees of the appellant courier have committed gross violations on their own accord to satisfy their own greed without knowledge of the appellant courier. 7.2 It is also not in dispute that the appellant courier has initiated criminal and disciplinary proceedings against the guilty employees and removed them from service. It is seen from the impugned order itself that the employee Hitesh Fofandi was terminated on 19.5.2014 and police complaint against him was filed with Sahar Police Station, Andheri, Mumbai on 29.5.2014 itself. It is not the case of the department that the police investigations revealed any complicity of the appellant courier. 7.3. The courier license was granted to appellant in 2005. It is not in dispute that since then the appellant courier had unblemished track record. The adjudication order re....