TaxTMI 
TaxTMI 
2018 (5) TMI 2043
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....resentative was not inclined to accept our prima facie view of being bound by the precedent decision of the Tribunal, in Commissioner of Customs (General), Mumbai v. Mukadam Freight Systems Pvt Ltd [2018 (359) ELT 612 (Tri-Mumbai)], holding that none of the Regulations envisage appeals by the licensing authority against its own decision. Learned Authorised Representative based his submissions on a set of facts that he insisted upon presenting. 3. According to him, the precedent judgements disentitling departmental appeals had erred in overlooking the general provisions in section 129 for filing of appeals. By reference to the decision of the Tribunal in Commissioner of Customs (General), Mumbai v. Zulash Clearing and Shipping Agency [2017 (358) ELT 651 (Tri-Mumbai)] which, according to him runs counter to the earlier decision of the Tribunal as the matter stood remanded instead of being dismissed on that legal impediment and, that too, despite there being commonality in the constitution of the bench that decided both matters, he pleaded for consideration of the issues afresh. He further submitted that an earlier decision of the Tribunal in Commissioner of Customs, Mumbai v. Bipi....
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....t of Revenue to file the appeal. He specifically drew our attention to para 20, 34 & 38 of the said order of the Larger Bench (supra). We have perused the same and noticed that the Larger Bench had examined the right of the owner of the goods to file an appeal against the decision for provisional release by the adjudicating authority under Section 110A of the Customs Act, 1962. The Tribunal had no occasion to examine the provisions of CBLR, 2013 as the same was not the point of dispute there. Further, the learned DR laid emphasis that any decision of "adjudicating authority" will involve persons and one of the persons should have a legal right to file an appeal for remedy. He submitted that, Section 129A provides for appeal to Appellate Tribunal of any person aggrieved by any order of the Commissioner of Customs. As already noted that the issue regarding right of the Revenue to file an appeal under CBLR, 2013 was specifically examined by the coordinate Bench in more than one occasions and concluded that in the presence of specific provision for CHA as well as no specific provision for the Revenue, such appeal is not contemplated or permissible under CBLR, 2013 on the part of the Re....
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....ervention by Committee of Chief Commissioners in proceedings under Customs Broker Licencing Regulations, 2014 (as well its predecessor Regulations), we feel that it would be worthwhile to elaborate. 6. In re Mukadam Freight Systems Pvt Ltd, the Tribunal has examined the special place occupied by 'customs brokers' in the scheme of the Customs Act, 1962, the comprehensive provision for licensing, operation and termination of customs brokers and the analogy with disciplinary proceedings appendant to 'master-servant' relationship to conclude that '13. The consequential question that begs an answer is the scope of taking recourse to the general provision in Chapter XV of Customs Act, 1962 on the assumption that Regulation 23 of the Customs House Agents Licensing Regulations, 1984 is a special provision contemplating appeal only to aggrieved licencee and that Revenue authorities cannot be discriminated against. Such a proposition does not appear to be congruent with legislative intent as the special provision itself is not warranted if general provision in Section 120 9A of Customs Act, 1962 could have been resorted by an aggrieved licencee. On the contrary, legislative inten....
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.... licensee) subject to which a licence may be granted; (e) the circumstances in which a licence may be suspended or revoked; and (f) the appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeals shall be filed.' that this, incorporating, as it does, empowerment of Central Board of Excise & Customs for notifying deprivation and penal provisions along with the appellant provisions, is a comprehensive and self-sustaining provision of Customs Act, 1962 without the need for support from any other law or provision. Special law need not necessarily be a separate enactment but may be embedded in a statute without detracting from its autonomous characteristic. In Commercial Tax Officer v. Binani Cements Ltd [2014 (8) SCC 319], the Hon'ble Supreme Court has held that special law prevails over general law and, thereby, precludes recourse to the general law as a supplement to the special law. We are certain that the arguments of Learned Authorised Representative cannot run contrary to this principle even though there is a certain dilution in his proposition that, while the special law applies to the 'customs bro....
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....contemplate appeal by any entity other than an affected broker within the scheme of the Regulations. For the Regulations to provide, explicitly or impliedly, such option to the licencing authority on direction from any other authority, would be colourable exercise of delegated legislation. And that which the Regulation does not provide for cannot be arrogated by the licencing authority. 11. A close parallel can be seen in the framework of disciplinary proceedings that govern detriment to terms and conditions of service. The designated disciplinary authority may impose stipulated penalties, including dismissal, removal or retirement from office, in accordance with the procedure prescribed which may be appealed against by the employee. There is no provision within that framework for the disciplinary, or any higher, authority to appeal for enhancement and the employer is competent to seek judicial redressal for the limited purpose of enforcing the penalty imposed by the disciplinary/appellate authority. In like manner, it is inconceivable that an authority that is administratively superior to the licensing authority should be empowered to direct the licensing authority to seek retr....