By TIOL News Service

MUMBAI, MAR 04, 2014: VIDE orders passed by the Commissioner of Customs (General), Mumbai in the months of August & November, 2013, the appellant has been prohibited to function as a Customs Broker within his jurisdiction, as per the provisions of Regulation 23 of CBLR, 2013 pending inquiry proceedings under Regulation 20.

Aggrieved with this order, the appellant is before the CESTAT.

It is submitted that -

++ as per Regulation 21 of CBLR, 2013, a Customs broker, who is aggrieved by any order passed by the Commissioner of Customs under this Regulation, may prefer an appeal under Section 129A of the Customs Act, before this Tribunal and, therefore, the appeal is maintainable.

++ the wordings of the CBLR, 2013 is different from its predecessor CHALR, 2004 inasmuch as under CHALR, 2004, under Regulation 22, only appeals against suspension or revocation under Regulations 20 or 22, as the case may be, could be heard by the Tribunal.

++ in CBLR, 2013, there is no restriction in hearing any order passed by the Commissioner of Customs and, therefore, the appeal is maintainable before this Tribunal.

The Bench observed that both the CHALR 2004 as also CBLR 2013 have been framed under the provisions conferred by the provisions of Section 146 of the Customs Act, 1962.

After extracting the provisions of section 146 (as they existed prior to the substitution made by the Finance Act, 2013), the Bench observed -

"5. Clause (f) of sub-section (2) deals with the appeals. The said section specifically says that appeal against an order of suspension or revocation of a licence is only admissible if the Regulations so provide. Thus, there is no specific provision for provided in the Regulations to hear an appeal against an order of prohibition. Therefore, so long as the section 146(2) does not provide for appeal against an order of prohibition, it cannot be presumed that CBLR, 2013 provides for an appeal against the order of prohibition to be heard by this Tribunal. The entire CBLR, 2013 has been framed under the powers conferred under section 146(2). Therefore, the provisions of CBLR, 2013 cannot be interpreted in such a way so as to override the provisions of section 146(2). In this view of the matter, we are of the considered view that the appeal against the order of prohibition does not lie before this Tribunal. Accordingly, the same is dismissed as not maintainable. Early hearing application also stands disposed of."

In passing - ROM in the pipeline - whose mistake:

Regulation 21 of the CBLR, 2013 as notified by notification 65/2013-Cus(NT) dated 21.06.2013 reads -

21. Appeal by Customs Broker.- A Customs Broker, who is aggrieved by any order passed by the Commissioner of Customs under these regulations, may prefer an appeal under section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of section 129 of the Act.

Regulation 22(8) of the erstwhile CHALR, 2004 read -

(8) Any Customs House Agent aggrieved by any decision or order passed under regulation 20 or sub-regulation (7) of regulation 22 may prefer an appeal under section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of section 129 of the Act.

Incidentally, section 146 of the Customs Act, 1962 was substituted by the Finance Act, 2013 w.e.f 10.05.2013 and the new section carries the title ‘Licence for customs brokers'. Nonetheless, the earlier sub-section 146(2)(f) now finds a place as section 146(2)(g) but with the same content which reads - the appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeal may be filed.

(See 2014-TIOL-333-CESTAT-MUM)