2022 (8) TMI 1064 - AT - Customs

Suspension of Customs Broker License - non-examination of persons even when the statements made were retracted - cross-examination of co-accused not allowed - copy of the offence report was not given - failure to adhere to mandatory time schedule prescribed for every stage of proceedings, under CBLR, 2018 and CBEC's Circular dated 08.04.2010 - whether the appellant has involved himself in the undervaluation by the importer? - violation of principles of natural justice. HELD THAT - In the instant case the appellant is accused of having the knowledge of the undervaluation committed by the importer and that he has not kept the Department informed and thus they have violated provisions of Regulations 10(d), 10(e) and 10(m) of CBLR, 2018. It is found that order of suspension was issued after about a year of recording of the statement of the accused - the action like suspension needs to be immediate and any delay, in this regard, would give an impression that the action was not warranted. In this case, the Department has not shown any case of urgency to suspend the license of the custom broker. The suspension of license of a custom broker, placed on a similar footing, alleged to have involved in the same offence committed by the importer at Mundra, has been revoked. The justice demands that when the allegations are common, action taken should be similar - the differential treatment meted out to the detriments of the appellants appears to be as a result of prejudice. Violation of principles of natural justice - time line for issuance of show cause notice under CBLR, 2018 have not been followed - HELD THAT - The custom broker is bestowed with certain facilities as well as responsibilities, as far as customs clearance is concerned. The High Court have interpreted, the provisions regarding the issuance of show cause notice within 90 days of the receipt of offence report, differentially while some High Courts have held that the time line is mandatory, somehow held that it is only directionary. It is the case of the appellant that copy of the offence report/information against the appellant was not provided; suspension was ordered after lapse of around one year; while the custom broker at Kandla was allowed, by revoking the suspension, to continue his business, the appellant has been met to suffer - the Department has not made out any case for suspension of the custom broker license, as it could be seen that the action was too much delayed and therefore does not display any urgency - serious injustice was done to the appellant in comparison with the custom broker at Mundra. The impugned order is set aside and the suspension of the appellant-custom broker s license is revoked - Application allowed.

Summary

Issues:
Violation of Provisions of Customs Act, 1962 and principles of natural justice; Failure to adhere to mandatory time schedule; Allegations of differential treatment; Violation of principles of natural justice and timelines under CBLR, 2018.

Analysis:

1. Violation of Provisions of Customs Act, 1962 and Principles of Natural Justice:
The appellant, a custom broker, was accused of failing to discharge obligations as per Regulation 10(d), 10(e), and 10(m) of Custom Broker Regulation, 2018. The Department alleged that the appellant was aware of undervaluation by an importer. The suspension of the custom broker's license was deemed unwarranted due to the lack of immediate action and urgency shown by the Department. The delay in suspension raised doubts about the necessity of such action.

2. Failure to Adhere to Mandatory Time Schedule:
The appellant argued that the Commissioner did not follow the mandatory time schedule prescribed under CBLR, 2018 and CBEC's Circular dated 08.04.2010. The delay in issuing show cause notice and conducting the inquiry was highlighted, impacting the appellant's business operations and causing suffering to employees. The differential treatment between the appellant and another custom broker involved in a similar offense raised concerns about fairness and prejudice.

3. Allegations of Differential Treatment:
The Tribunal noted that another custom broker involved in a similar offense had their license suspension revoked, while the appellant faced suspension. The differential treatment without justification was viewed as prejudicial and unjust. The principle of treating similar cases equally was emphasized, indicating that justice demands consistency in actions taken against accused parties.

4. Violation of Principles of Natural Justice and Timelines under CBLR, 2018:
The appellant contended that principles of natural justice were violated, and timelines for issuing show cause notice under CBLR, 2018 were not followed. The Tribunal differentiated between the provisions of Customs Act, 1962 and CBLR, 2018, emphasizing the responsibilities and facilities bestowed upon custom brokers. The delay in providing necessary information and the suspension order after a prolonged period were deemed unjust and lacking urgency.

In conclusion, the Tribunal found that the suspension of the appellant-custom broker's license was unjustified, considering the delayed action, differential treatment, and lack of urgency displayed by the Department. The impugned order was set aside, and the suspension of the license was revoked, highlighting the importance of fairness, consistency, and adherence to procedural requirements in such cases.