Cus - Order being a notice for holding an inquiry and appointment of Inquiry Officer and Presenting Officer was meant for those officers only and same cannot be treated as 'adjudication order' - appeal against same is not maintainable: CESTAT
By TIOL News Service
MUMBAI, FEB 20, 2016: THE Commissioner of Customs (General), Mumbai appointed an officer in the rank of Assistant Commissioner of Customs as an Inquiry officer to inquire the case of Customs Broker M/s Unique Logistics Solutions (I) Pvt. Ltd.
The Customs broker has filed an appeal before the CESTAT against this order.
On a preliminary query by the bench as to whether the appeal is maintainable,the appellant submitted that the impugned order is an order passed by the Commissioner in the capacity of adjudicating authority under Customs Broker's Licensing Regulations, 2013 and as the said Regulation was made under Sec. 146 of Customs Act, therefore, in terms of Sec. 129(A) of Customs Act, 1962 an appeal lies before the CESTAT. Furthermore, by the impugned order for initiation of inquiry, the Inquiry Officer was appointed whereas Regulation 20 of CBLR, 2013 provides 90 days for initiation of inquiry from the date of receipt of the offence report. Inasmuch as since in the present case the offence was investigated in 2011 and SCN proposing penalty was issued on 12.06.2012 but as no offence report was forwarded to Commissioner, therefore, no proceeding under Regulation of CBLR, 2013, could have been initiated by the Commissioner. And, therefore, the appeal against this order is maintainable, submitted the appellant.
The AR strongly objected that appeal is not maintainable as no appealable order was passed. Further, the order against which the appeal is preferred is not an adjudication order but an administrative order for appointment of Inquiry Officer and Presenting Officer; that this order was addressed to said officers and a copy was marked to the appellant which clearly showed that this order is only for information purpose to the appellant. Reliance is placed on the following decisions in support viz. Bose Enterprise & Another V/s. Union of India & Other; WP No. 143 of 2010 - GA No. 253 of 2011 dated 15 th March 2011; S.R. Sale & Co. V/s. Commissioner of Customs (General), Mumbai - 2013-TIOL-455-HC-MUM-CUS.
The Bench extracted the “order dated 24.04.2015” passed by the Commissioner of Customs (General) which reads -
The CESTAT thereafter observed -
"From the above order, it is clearly observed that this order was issued only for appointment of the Inquiry Officer and the presenting Officer for inquiry of a case against the appellant. It is also noticed that the order was issued to both the officers Shri V.G. Naik, Asst. Commr. of Customs and Shri Tilak Raj Kudwal, Superintendent and only a copy was marked to the appellant.
5. We observe that it is an order for appointment of officers and the appellant cannot be aggrieved by the administrative action of the Ld. Commissioner appointing the officers for inquiry. We also observe that a notice was issued to the appellant which is reproduced below:
x x x
From the above notice, it is seen that it is only a notice for holding an inquiry against the appellant. The appeal can be filed only against an adjudication order whereas this notice cannot be treated as adjudication order. Therefore, no appeal lies before this Tribunal against the said notice."
After extracting Regulation 20 of CBLR, 2013 the Bench further observed -
++ From the Regulation 20(1), it can be seen that under the said provision, a notice shall be issued by Commissioner of Customs. In the present case also it is the notice in terms of Regulation 20(1) was issued and there is no provision under the said Regulation for passing any appealable order. Therefore, the Commissioner strictly following the Regulation 20(1) issued notice dated 24.04.2015.
++ Under the CBLR, 2013, appeal can be filed only against the order of suspension or revocation of CBLR in terms of Sec. 146(2)(g) of Customs Act, 1962. Since in the present case, neither any order for suspension or revocation of the License was passed, the present appeal is not maintainable on this count also.
Holding that the order dated 24.04.2015 being a notice for holding an inquiry and appointment of the Inquiry Officer and Presenting Officer was meant for those officers only and the same cannot be treated as 'adjudication order', the Bench dismissed the appeal as not maintainable.
Ray of hope: We make further clear that the appellant has liberty to file appeal as and when any final order is passed after inquiry, therefore, at this stage appeal is not maintainable against a notice for holding the inquiry - Tribunal.
(See 2016-TIOL-470-CESTAT-MUM)
