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TMI Blog2014 (7) TMI 815X X X X Extracts X X X X X X X X Extracts X X X X ..... that we are of the opinion that the impugned order cannot be sustained. The power under Regulation 23 which is discretionary and coupled with a duty could not have been exercised in the given facts and circumstances and for the reasons that we have set out above. The Commissioner is free to take such steps against the importer/client as also the petitioner in terms of the pending adjudication proceedings or otherwise but in accordance with law - parent Commissionerate at Cochin may take appropriate action - decided in favor of petitioner. - Writ Petition (L) No. 1586 of 2014 - - - Dated:- 1-7-2014 - S. C. Dharmadhikari And B. P. Colabawalla,JJ. For the Petitioner : Mr. Prakash Shah with Mr. Durgaprasad Poojari and Ms. Megha Bansal i/b. PDS Legal. For the Respondent : Mr. Pradeep S. Jetly JUDGMENT 1] Rule. Respondents waive service. By consent Rule made retunable forthwith. 2] This Writ Petition is by the petitioner which is a company registered under the Indian Companies Act, 1956 engaged, interalia, in the business of forwarding and clearing of cargoes of various importers and exporters at Mumbai Port. The petitioner has been established in the ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permit them to amend the Bill of Entry to assess the said Vessel on temporary basis instead of permanent basis, copy of which has been annexed. Based on these instructions of the importer, even the petitioner requested the Assistant Commissioner of Customs to permit the amendment of the Bill of Entry and assess the Vessel on temporary import basis instead of permanent basis. The request made by the petitioner was allowed by making endorsement at the foot of the letter dated 15th December, 2010 (Annexure-F). 6] We are not really concerned with the disputes between the clients/importer and the customs authorities. Be, that as it may, certain dispute did arose with regard to the claim of the importer/client for exemption from payment of custom duty. The Writ Petition was filed in this Court by the client seeking appropriate directions to the Customs authorities to make an assessment of the Vessel. An order came to be passed on 23rd December, 2010 on the said Writ Petition recording the statement of the customs authorities that a provisional release order will be passed as expeditiously as possible which resulted in disposal of the Writ Petition. Thereafter, the provisional assessm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use notice would show that they are only based on the solitary import on behalf of the client M/s. Larsen Toubro Sapura Shipping Pvt. Ltd. Beyond that single or solitary case, the show cause notice does not allege anything by which one can conclude that the petitioner deserves to be prohibited from operating and functioning as a customs broker at the concerned Station. Even that single or solitary incident is nearly three years old. Based on that, a notice cannot be issued in April 2014 and a drastic order passed. Mr. Shah submits that the order is completely arbitrary and highhanded inasmuch as the department could not succeed in their endeavour to seize the Vessel and prior thereto could not withhold the request for amendment of the Bill of Entry. The petitioner has moved the authorities in writing with the request on behalf of the importer. That the importer was allegedly not entitled to the relief claimed in the said communications is no ground to proceed against the petitioner for violating the stipulations or the provisions of Regulation 11 and 17. Mr. Shah submits that Regulation 11(d) and 11(m) so also the Regulation 17(9) which is stated to be violated does not envisage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t this is an independent power and not controlled by the power to suspend or revoke the license which is conferred in the parent Commissionerate. In the present case, there are reasons assigned and which would show that the Customs Broker has violated Regulation 11(d), 11(m) and 17(9) of the Customs Brokers Licensing Regulations, 2013. The petitioner cannot take shelter of the order passed in the Writ Petition instituted by Larsen Toubro Limited namely the importers/clients. The petitioner as a broker was obliged to follow the Regulation and particularly the stipulations in Regulation 11 and 17. Therefore, this is a step taken so as to prevent misuse of the license and just because the Commissioner relied upon a single instance does not mean that the impugned order is vitiated by any error of law apparent on the face of the record or perversity leave alone is arbitrary and highhanded as alleged. If the petitioner was to assist the client/importer in effecting payment of custom duty by claiming only legitimate benefits and when the petitioner was aware that the imports were permanent in nature, then, it is a serious act and particularly when the obligations under the Regulation ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t be exercised merely because in the opinion of the Commissioner of Customs, the broker has pursued the case of the client/importer needlessly or endlessly. That is a matter which the Commissioner has to deal with independently and for which in a given case he can proceed not only against the importer/client but the broker as well. There are enough provisions in the Customs Act enabling the Commissioner to take care of evasion of duty and dealing with persons responsible for the same. There are also enough measures and which can be initiated so as to prevent such activities in future. However, when the proceedings against the importer in this case are pending and no final adjudication has taken place and the matter is as old as 3 years, then, we do not see any justification for issuing a notice to the petitioner and proceeding against it in terms of Regulation 23. There is much substance in the contention of Shri Shah that the show cause notice has close proximity with the case or stand of the importer/client. From time to time the importer/client has succeeded in protecting its rights, namely, of import and the grant of Essentiality Certificate. The petitioner can be proceeded aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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