RAMAANS TOTAL LOGISTICS PVT. LTD. Vs. CC (PREV.)

JUDGEMENT

(1.) THIS appeal is directed against OIO No. 03/2013 -14, dt. 28.02.2014, vide which the CC (Prev.) Jamnagar has rejected the application filed by the appellant for change of constitution of the firm proprietorship to private limited company in the CHA licence.

(2.) LD . Counsel appearing on behalf of the appellant would submit that the appellant has made an application for change in constitution on 23.02.2011 for change in CHA license which was held in the name of Shri K.J. Bhayani to M/s. Raamans Total Logistics Private Limited. The said application/letter of the appellant was corresponded with various letters from the Department and in a letter dt. 09.09.011, the Customs authorities sought more details from M/s. Raamans Total Logistics Private Limited. It is his submission that during correspondence with Department, proprietor Shri K.J. Bhayani expired on 27.11.2011. It is his submission that the adjudicating authority had in the order held that the appellant has filed/applied for fresh license on 09.04.2012 without revealing the death of the license holder. It is his submission that this finding seems to be inappropriate as the Revenue authorities have themselves directed appellant to file an application in proper format vide letter dt. 16.01.2012. He would submit that the adjudicating authority has relied upon the provisions of Customs House Agents Licensing Regulations, 2004 (hereinafter referred to as CHALR) and relying upon the Regulation 15 of CHALR, they rejected the change in the constitution. He would then draw our attention to the judgment of the Hon'ble Supreme Court in the case of M/s. Automotive Tyre Manufacturers Association Vs. Designation Authority : 2011(263) ELT 481 (SC) for the proposition that any order passed by the Commissioner of Customs is a quasi -judicial order if it contains the details of the allegations, defense and the findings. He would submit that CC (P) Jamnagar has specifically recorded the issue, defense and findings and the order and hence this order should be considered as an order passed by an quasi -judicial authority. He would buttress the proposition while relying upon the various decisions which held that imposition of anti dumping duty is a quasi -judicial function can be challenged before the Tribunal. He would then draw our attention to the judgment of Hon'ble High Court of Kerala in the case of Collector of Customs, Cochin Vs. State of Kerala : 1993(66) ELT 351 (Ker.) for the proposition that the said judgment needs to be read for meaning of the word per incuriam as it is his submission that Revenue is relying upon the Tribunals decision in the case of M/s. S.N.M. Agency Vs. CC Mumbai, 2014 -TIOL -333 -CESTAT -MUM for the proposition that the Customs Brokers Licensing Regulations, 2013 (hereinafter referred to as CBLR) cannot be pressed into service for filing an appeal before the Tribunal except as provided. He would draw our attention to the judgment of the Hon'ble High Court of Bombay in the case of Electro fronts Vs. UoI : 2003(162) ELT 1182 (Bom.) for the proposition that in CHALR, the regulation provided for appeal before the Chief Commissioner against an order passed other than suspension or revocation of licence, while in the current CBLR, there is no regulation for filing an appeal before the Chief Commissioner but instead Regulation 21 specifically states that appeal shall lie to CESTAT against any order of the authorities. He rely upon this case to drive home the point that when there is a substantive right which has provided specifically in the earlier regulation which has been now also considered in the regulation and appeal mechanism has been provided. He would submit that an issue of non -renewal of the license would affect the livelihood of the employees working with the appellant as also the right to earn livelihood of the appellant, which cannot be rendered remedy -less. He would rely upon the decision of Hon'ble Supreme Court in the case of Subhas Photographics Vs. UoI : 1993(66) ELT 3 (SC) and in the case of Tika Ram & Sons Vs. Commissioner of Sales Tax, Lucknow : [1968] 22 STC 308 (SC) for the proposition that the Apex Court has specifically interpreted the word in particular which occurred in Section 166 of Customs Act, 1962. He would further elaborate that the provisions of Section 146 of Customs Act provides for licenses of CHA and also regulations to be made by the authorities. He would draw our attention to the said Section and submit Section 146(2) of the Customs Act, 1962 provides that the regulation be made by Government of India, which would in particular include few clauses indicated therein. He would submit that Revenues case is that the regulations only provides for appeal against suspension or revocation of license and the words used in particular having interpreted by the Apex Court to hold that the power is confined only to peripheral or procedural matters. He would submit that the impugned order be set aside and authorities be directed to change the constitution of CHA license No. CHA/JMR/R/20/2003 from Proprietor ship to Private Limited Company.

(3.) LD . Departmental Representative, while giving the factual position would also submit that the appellant herein had not kept Department informed about the death of the proprietor in respect of said CHA license and filed an application for issuing of license in the name of the new company on 09.04.2012. He would submit that this action of the appellant itself indicates that they were aware of the change in constitution of the license would not permitted after the death of the CHA license holder late Shri K.J. Bhayani. He would submit that the application of the appellant was correctly rejected as they had not apply for the license before the death of the license holder and the license was not issued to them before the death of the license holder.