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2024 (6) TMI 640 - HC - CustomsTimeline prescribed under Regulation 20 (5) of the Customs Broker Licensing Regulations 2013 - whether the Tribunal could have discarded the enquiry report in its entirety as being submitted in breach of the timeline prescribed in Regulation 20 (5) of the Regulations of 2013 or should have considered the same on merits and on such consideration have the discretion to attach such weightage to it as deemed appropriate? HELD THAT - The order impugned before the Tribunal has been premised upon the enquiry report. The order impugned before the Tribunal has prescribed both cancellation of the license as well as forfeiture of the security deposit of the broker. The Tribunal has accepted a portion of the order impugned before it that is to say that it has upheld the forfeiture of the security deposit of the broker while setting aside the order of cancellation of the license. In doing so it has to be held that the Tribunal accepted the enquiry report partially in imposing such a penalty on the respondent. If the Tribunal had discarded the enquiry report in its entirety which it could not have done in view of the pronouncement of this Court in ASIAN FREIGHT (UNIT OF ESAN FREIGHT TRAVEL PVT. LTD.) AND ORS. VERSUS THE PRINCIPAL COMMISSIONER OF CUSTOMS (AIRPORT ADMINISTRATION) CUSTOMS HOUSE AND ORS. 2016 (8) TMI 1362 - CALCUTTA HIGH COURT and M/S. OTA FALLOONS FORWARDERS PVT. LTD. VERSUS UNION OF INDIA ANOTHER 2018 (6) TMI 656 - CALCUTTA HIGH COURT which were binding upon it at that material point of time then the order under appeal before the Division Bench could not have been sustained. Again the Division Bench has noted that the Tribunal has accepted a portion of the enquiry report and therefore the Division Bench has proceeded to uphold the order of the Tribunal impugned before it. The Adjudicating Authority while dealing with the proceeding under Regulation 20 of the Regulations of 2013 is called upon to take into consideration the materials proved before it. Absence of the broker before it or refusal of the broker to participate in the adjudication proceedings does not vest the broker with any additional benefits of a requirement on the Adjudicating Authority to apprise the reply of the broker in the manner suggested by the Hon ble Second Judge - In the facts and circumstances of the present case neither the enquiry report nor the order of adjudication impugned before the Tribunal can be faulted for not having taken into consideration relevant materials. The present reference is answered by holding that the timeline prescribed under Regulation 20 (5) of the Regulations of 2013 are directory. The Tribunal is vested with the discretion to attach such weightage to the enquiry report as deemed appropriate after consideration of the same on merits. Application disposed off.
Issues involved:
The judgment involves the interpretation of the timeline prescribed under Regulation 20 (5) of the Customs Broker Licensing Regulations, 2013 and whether the Tribunal could discard the enquiry report for breaching the timeline or consider it on merits. Details of the judgment: Issue 1: Breach of timeline under Regulation 20 (5) of the Regulations of 2013 - The respondent, a Customs Broker, was found aiding illegal exportation of contraceptives. - Customs authorities suspended the respondent's license and issued Show Cause Notices. - The Tribunal set aside the revocation order but upheld the confiscation of the security amount. - Customs authorities appealed under Section 130 of the Customs Act, 1962. - Division Bench held the timeline under Regulation 20 (5) as directory, differing on the treatment of the enquiry report. Issue 2: Treatment of enquiry report by the Tribunal - The Hon'ble First Judge opined that the Tribunal correctly exercised discretion in rejecting the enquiry report. - The Hon'ble Second Judge opined that the Tribunal should consider the report on merits despite the breach of the timeline. - Both Judges agreed that the timeline under Regulation 20 (5) was directory. Conclusion: - The Division Bench's unanimous decision on the directory nature of the timeline is binding. - The Tribunal has discretion to consider the enquiry report on merits despite the breach. - The Tribunal partially accepted the enquiry report in imposing penalties. - The Adjudicating Authority is not required to apprise the broker's reply in a specific manner. - The timeline under Regulation 20 (5) is held as directory, allowing discretion in attaching weightage to the enquiry report. - The reference is answered, and the case is disposed of. Note: The judgment refers to various legal precedents and emphasizes the discretion of the Tribunal in evaluating evidence and imposing penalties based on the enquiry report.
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