2020 (12) TMI 710 - AT - Customs

Revocation of Customs Broker License - forfeiture of security deposit - penalty - mis-conduct and non-compliance of the regulations of CBLR - appellant disputed the enquiry report stating that the present enquiry officer Shri Rex Hungyo is biased against the petitioner, as he has already in the earlier enquiry report conducted in the matter of show cause notice to the CB company observed that the present appellant have rendered himself liable to be penalized under Regulation 18 of CBLR, 2018 - HELD THAT - There is no proper enquiry into the allegation of forgery made by this appellant against the other Directors. Further, the department have blindly relied upon the contentions of the other Directors without even examining the original resignation letter dated 22 August, 2018, thus vitiating the proceedings. There are no explanation was called from the other alleging Directors as to why Form DIR-12, for bringing on record the resignation from the directorship of this appellant was filed only on 19 November, 2018, i.e. after about three months and during all this time why they permitted the appellant F-Card holder and Director to use the Customs Broker license of the company. Further there is no explanation obtained by the court below as to the reason for failure on the part of the other Directors to intimate the Custom department of change in the Constitution of the Directors of the company holding CB license. Further the contentions of this appellant as to the forgery and fraud being committed by the other Directors, particularly Shri Mukesh Kumar Saini have not been found to be untrue but have been summarily rejected without any reason recorded. As the Customs Broker account of the custom broking company can be deactivated itself on ICEGATE, still the same was not done by the other alleging Directors till 18 December, 2018, for which there is no explanation. The present proceedings suffer from the vice of biasness as well as are in violation of the principles of natural justice. Also, the show cause notice issued to this appellant is time barred and bad. Further, the present proceedings are by way of repetition of the allegations in the earlier show cause notice issued to the CB company, wherein there is no specific allegation against this appellant and he was not even a party, nor any penalty was proposed against them. Appeal allowed - decided in favor of appellant.

Issues Involved:
1. Legitimacy of the resignation letter dated 22 August 2018.
2. Allegations of forgery and fraud by other directors.
3. Compliance with Regulation 7(2)(b) and Regulation 14 of CBLR, 2018.
4. Validity of the show cause notice issued to the appellant.
5. Bias and violation of natural justice in the enquiry process.
6. Penalty imposition under Regulation 18 of CBLR, 2018.
7. Validity of the F-Card No. 145/2016 issued to the appellant.
8. Consideration of the appellant's pending application for a new CB license.

Detailed Analysis:

1. Legitimacy of the resignation letter dated 22 August 2018:
The appellant vehemently denied writing or signing the resignation letter dated 22 August 2018. He claimed that he only became aware of the alleged resignation on 4 December 2018. The tribunal found that the department did not properly examine the original resignation letter, which vitiated the proceedings.

2. Allegations of forgery and fraud by other directors:
The appellant accused the other directors, particularly Shri Mukesh Kumar Saini, of committing forgery and fraud with the intention to harm him. The tribunal noted that there was no proper enquiry into these serious allegations, and the department relied blindly on the contentions of the other directors without adequate investigation.

3. Compliance with Regulation 7(2)(b) and Regulation 14 of CBLR, 2018:
The Commissioner held that M/s S. Satyam Aviations Pvt. Ltd. failed to comply with Regulation 7(2)(b) of CBLR, 2018, leading to the revocation of the CB License and imposition of a penalty. However, the appellant argued that he was not aware of any board resolution or changes in directorship, and the tribunal found that the department did not obtain explanations from the other directors regarding the delay in filing Form DIR-12 and the failure to inform the Customs department about the change in directorship.

4. Validity of the show cause notice issued to the appellant:
The appellant contended that the show cause notice dated 6 September 2019 was time-barred, as it was issued beyond the 90-day limit from the alleged offence report dated 3 December 2018. The tribunal agreed, finding the show cause notice to be time-barred and bad.

5. Bias and violation of natural justice in the enquiry process:
The appellant argued that the enquiry officer, Shri Rex Hungyo, was biased against him, having already made adverse observations in a previous enquiry report dated 11 June 2019. The tribunal found that the enquiry officer was prejudiced and that the proceedings suffered from bias and violation of natural justice.

6. Penalty imposition under Regulation 18 of CBLR, 2018:
The Commissioner imposed a penalty of ?50,000 on the appellant under Regulation 18 of CBLR, 2018, and directed him to surrender the F-Card. The tribunal found that the enquiry officer did not conduct a fair enquiry and that the penalty imposition was based on flawed proceedings.

7. Validity of the F-Card No. 145/2016 issued to the appellant:
The tribunal held that the F-Card No. 145/2016 issued to the appellant was valid, as the proceedings against him were found to be vitiated and based on improper enquiry.

8. Consideration of the appellant's pending application for a new CB license:
The tribunal directed the respondent authority to consider the appellant's pending application for a new CB license in accordance with the law, as the impugned order was set aside.

Conclusion:
The appeal was allowed, and the impugned order was set aside. The tribunal held that the F-Card No. 145/2016 issued to the appellant is valid and directed the respondent authority to consider the appellant's pending application for a new CB license in accordance with the law.

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