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TMI Blog2014 (11) TMI 662X X X X Extracts X X X X X X X X Extracts X X X X ..... ara 24 of the impugned order wherein the adjudicating authority records ‘I find on record that the said CB has filed Bill of Entry No.931901, dt.25.01.2010 with the documents for the clearance of the subject vessel with related documents.’ When on such categorical acceptance of the fact that the appellant herein has discharged his duty liability as a Customs Broker by filing all the related documents, declaring the vessel as ‘Seismographic Research Vessel’, the change in classification after investigation, in our view, cannot be attributed to malafide or mens-rea of the Customs Broker. Declaration filed by the appellant for the clearance of the vessel as being supported by the documents in his custody and were filed with the Customs aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and liable to Customs duty as benefit of notification was not available, due to which there was an escapement of duty of approx. ₹ 9.25 Crores. The enquiry was also conducted under the provisions of Customs Brokers Licence Regulations, 2013 (CBLR) and more specifically under Regulations 10, 11(b), 11(d), 11(e), 11 (m), 70 (9). 3. Ld. Counsel appearing on behalf of the appellant, after taking us through various records and proceedings before the authorities, submits that there is no mis-declaration on the part of the appellant. It is his submission that the appellant has filed documents like invoice issued by the shippers, packing list, registration of vessel with Indian Registrar of Shipping, Indian Registrar of Shipping s letter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel. It is his submission that on investigation, it is found that the vessel which was imported for which Bill of Entry was filed by the appellant was, in fact, a survey vessel. It is his submission that the appellant as a CB, should have advised the importer and alternatively, also brought to the notice of the Customs authorities that the vessel is correctly classifiable as Seismic Survey Vessel . Having not done so, he has violated the provisions of CBLR 2013. It is his submission that the inaction on the part of the appellant had almost ended into loosing revenue of approximately ₹ 9.24 Crores by extending in-eligible benefit of notification. It is his submission that the order of the adjudicating authority is correct in revoking ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dian Ships indicates the vessel as under:- 10. It can be seen from the above reproduced certificate of Registrar of Indian Ships, it categorically registers the ship M.V. Geo Hind Sagar as Seismographic Research ship . We are at a loss to understand when Government of India certifies and register the vessel M.V. Geo Hind Sagar as research ship, how the other wing of Government of India, Department of Revenue understands the same vessel as a Seismographic survey vessel . We find that the appellant, who is a CB, cannot be faulted with or cannot be charged with negligence or carelessness and failure to discharge the obligation cast upon him when he filed all the documents that indicate the imported vessel being Seismographic Research ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of licence for this contravention of the CHA Regulations unjustly restricts the appellants ability to engage in the business of the CHA for his entire lifetime. As importantly, it skews the proportionality doctrine, substantially lowering the bar for revocation as a permissible penalty, especially given the dire civil consequences that follow. On the other hand, the minority Opinion of the CESTAT, delivered by the Judicial Member, correctly appreciates the balance of relevant factors, i.e. knowledge/mens rea, gravity of infraction, the stringency of the penalty of revocation, the fact that the appellant has already been unable to work his silence for a period of 6 years (now 8 years), and accordingly sets aside the order of the Commiss ..... X X X X Extracts X X X X X X X X Extracts X X X X
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