TaxTMI 
TaxTMI 
2017 (10) TMI 767
X X X X Extracts X X X X
X X X X Extracts X X X X
....by the appellant for challenging the order dated 25th March 2015 passed by the Commissioner of Customs (General), Customs Broker Section, Mumbai has been dismissed on the ground that the same was not maintainable under the provisions of section 129A of the Customs Act,1962 (for short `the said Act'). 2 By the order dated 25th March 2015, the Commissioner of Customs rejected the application made by the appellant for grant of new Customs Broker Licence under the Customs Broker Licensing Regulation, 2013 (for short "said Regulation of 2013") by invoking clause (3) of Regulation 5 thereof. 3 The learned counsel for the appellant in support of his contention submitted that the appeal before the Appellate Tribunal was maintainable as un....
X X X X Extracts X X X X
X X X X Extracts X X X X
....2004. He invited our attention to the decision of a Division Bench of this Court in the case of Indowort (India) Limited vs. Union of India 2010 (254) E.L.T 62. He also relied upon a decision of the Gujrat High Court in the case of Commissioner of Central Excise Vs. Girish B.Mishra 2016 (339) E.L.T. 67 Gujrat. He also invited our attention to a decision of a Division Bench of this Court in the case of S.R.Sales and Company vs. Commissioner of Customs (General) 2013 (295) E.L.T. 653 Bombay . He would urge that the view taken by the Appellate Tribunal is erroneous and the appeal was maintainable. The learned counsel for the respondent supported the impugned order. 4 We have given careful consideration to the submissions. The law is well se....
X X X X Extracts X X X X
X X X X Extracts X X X X
....inst an order of suspension or revocation of a licence, and the period within which such appeal may be filed.] 6 Subsection 1 of section 146 lays down that no person shall carry on business as a Custom Broker unless such person holds a licence in accordance with the Regulation. Subsection 2 confers power on the Board to make Regulation for the purpose of carrying out the provisions of subsection 1 of section 146. Subsection 2 contemplates framing the Regulation providing for the Authority which is empowered to grant licence, qualifications for the person who may apply for licence, restrictions and conditions subject to which a licence may be granted. What is material is the fact that the power conferred by the Regulation framed under sub....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ment was canvassed that in view of clause (a) of subsection 1 of section 129 of the said Act, an Appeal lies before the Appellate Tribunal against the decision or order passed by the Commissioner of Customs as an Adjudicating Authority. An argument was canvassed that as order of prohibition has been passed by the Commissioner as an Adjudicating Authority, an Appeal would be maintainable under clause (a) of subsection 1 of section 129. Under clause 8 of Regulation 22, an appeal by Custom House Agent was maintainable before the Appellate Tribunal, only against the order passed under Regulation 20 or sub Regulation 7 of Regulation 22. It was submitted that notwithstanding the Regulation 22 of the said Regulation of 2004, an appeal would be mai....
X X X X Extracts X X X X
X X X X Extracts X X X X
....linary control are governed by the Regulation. Section 146(2) contemplates that the Regulation is intended to fulfill the purpose of carrying out of the provisions of the section. That the Regulation may also govern the remedies which are available to a CHA against an order passed in the disciplinary jurisdiction is made abundantly clear by clause (f) of Section 146 (2). Section 146(2)(f) clarifies by way of illustration that the Regulation can govern the appeals, if any, against orders of suspension or revocation. If recourse to the general power of an appeal under section 129A was intended by Parliament to be available in disciplinary matters involving CHAs, there was no necessity of including a provision such as that which is contained i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nherent right of appeal. An appeal is a creation of a statute or, as in the present case, the creation of a statutory provision (Section 146) read together with the Regulation. A CHA is, however, not without remedy against an order of prohibition which is amenable to the jurisdiction of the High Court under Article 226 of the Constitution." (underline supplied) 8 The Division Bench categorically observed that Section 146 operates in a field which is different from section 129A as section 146 governs licensing of Custom House Agents. It was observed that the remedies against the actions of the Licencing Authority have to be provided in the Regulation framed under subsection 2 of section 146. It was held that such Regulations are a self co....