Page 177 - ELT_1st July 2020_Vol 373_Part 1

2020 ] COMMISSIONER OF CUSTOMS, CHENNAI v. FREIGHT FIELD (MADRAS) PVT. LTD. 87

submit that, the final order, i.e., the Order-in-Original passed by the Commis-
sioner of Customs has infact imposed the penalty by forfeiting the security de-
posit of Rs. 25,000/- against the respondent/licensee, therefore that itself is a
punishment and such kind of orders can very well be passed by the Commis-
sioner of Customs under sub-regulation (7) of Regulation 22, which provides all
discretion to the said authority to pass such orders as he deems fit. The words
‘such orders as he deems fit’ give a wider discretion to the Commissioner of Cus-
toms to pass ultimate final order, after enquiring the matter and if any such order
passed by the Commissioner of Customs against the Customs Broker is prejudi-
cial to the interest of the Customs Broker, then he alone can prefer appeal as con-
templated under sub-regulation (8) of Regulation 22 before the CESTAT under
Section 129A of the Act and such facility is not given to the Revenue to prefer
any appeal, since the Revenue has been specifically omitted to be mentioned in
sub-regulation (8) of Regulation 22.
19. He would also urge that, if at all the makers of the Regulation, i.e.,
the Board, thought of providing an appeal to the Revenue also, the words in sub-
regulation (8) must be that, “any person aggrieved by any order passed under
Regulation 20 or sub-regulation (7) of Regulation 22” which could have been
employed with, instead, the words employed therein, i.e., at sub-regulation (8) is
only “any Customs House Agent aggrieved by any decision or order passed un-
der Regulation 20 or sub-regulation (7) of Regulation 22”. Hence it makes very
clear that, the appeal provision was made available only to Customs House
Agent and not to the Revenue, therefore the decision made by the CESTAT in
rejecting the appeal of the Revenue that, they do not have any right to prefer an
appeal in view of the specific provision, i.e., Regulation 22(8), is fully justifiable
and sustainable, therefore it does not warrant any interference from this Court,
he contended.
20. However, Ms. Aparna Nandakumar, Learned Counsel appearing
for the appellant Revenue has made submissions stating that, the merits of the
case need not be canvassed before this Court for the purpose of disposal of this
appeal, since the issue was only in respect of whether the Revenue has got ap-
peal remedy against a decision under CHALR before the CESTAT under Section
129A or not. Only to justify the circumstances as in the case of the present one,
which warrants such situation to the Revenue to file appeal before the CESTAT
under Section 129A of the Act, since the Revenue would be an aggrieved party,
in view of the orders passed by the Licensing Authority, i.e., the Commissioner
of Customs who exercise the power under Regulation 22(7) of the CHALR, 2004,
by taking a very lenient view despite severe violation of licensing regulations
like the present one, the Revenue, only for the purpose of deciding the issue
raised before this Court, points out the circumstances justifying the Revenue’s
desire to prefer appeal.
21. By making these prelude, the Learned Counsel would further sub-
mit that, the order passed by the Customs Broker Licensing Authority, in Order-
in-Original, is not an administrative order, as it is purely an order after adjudica-
tion, therefore such order is very well be covered within the circumstances men-
tioned under Section 129A of the Customs Act, therefore, it is an appealable or-
der.
22. She would further submit that, the respondent/licensee has violat-
ed various provisions of the Licensing Regulations and this has been proved on
the adjudication and the same having been recorded in the findings of the au-
EXCISE LAW TIMES  1st July 2020  177