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TMI Blog2016 (4) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... not expect a fair deal either at the post-decisional hearing or in any possible appeal that the petitioner may prefer under Regulation 21 of the said Regulations of 2013. 2. The petitioner acted as the Customs broker for one Sachar International of Delhi and filed a bill of entry dated February 9, 2015 for clearance of a consignment of automotive parts imported from the United Arab Emirates under an airway bill. According to the petitioner, the goods were inspected at the airport and cleared by the Customs authorities, but they were subsequently apprehended by officers of the Customs Preventive Commissionerate and put to check at the cargo unit of the Delhi Airport. 3. The order-in-original dated February 26, 2016 passed by an Additional Commissioner (Preventive) pursuant to a show-cause notice of July 29, 2015 observed that on the examination of the goods it was found that branded automotive parts of, inter alia, BMW, Mercedes and Toyota were included in the consignment though no brand or model of the automotive parts had been declared by the importer. Further, goods in excess of the declared quantity were discovered in the consignment. The order recorded that since the value an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort consignment of February, 2015. After noticing the important features of the order-in-original, the suspension order referred to the various obligations of a Customs broker under the several limbs of Regulation 11 of the said Regulations of 2013 before observing that the petitioner had failed to provide the documents sought in course of the proceedings before the Additional Commissioner (Preventive) and, thereby, further violated Regulation 11 of the said Regulations of 2013. The final paragraph of the order impugned and the directions contained therein are set out: "13. Therefore, in view of the foregoing reasons, an enquiry is contemplated against the Customs Broker M/s Ranabir Enterprise under Regulation 20 of Customs Broker Licensing Regulation 2013. Pending completion of such enquiry, it appears that the continuation of business transaction by the Customs Broker, would be prejudicial to the interest of Revenue and immediate action under Regulation 19(1) of CBLR 2013 is warranted to prevent further misuse of the Customs Broker licence. ORDER "(i) In view of the findings above I hereby order the suspension of CB Licence No. R-16, PAN No.ACWPG2166M of M/s. Ranabir Enterpri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in a period of ninety days from the date of receipt of an offence report, stating the grounds on which it is proposed to revoke the licence or impose penalty requiring the said Customs Broker to submit within thirty days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs Broker desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. (2) The Commissioner of Customs may, on receipt of the written statement from the Customs Broker, or where no such statement has been received within the time-limit specified in the notice referred to in sub-regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, to inquire into the grounds which are not admitted by the Customs Broker. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the suspension. The petitioner argues that since the matters complained of in the impugned order are of February, 2015 vintage, the petitioner's suspension was neither contemporaneous with the discovery of the perceived misconduct on the part of the petitioner, nor is there any reason proffered in the order of suspension as to the necessity of suspension at this stage. The petitioner claims that since no inquiry against the petitioner was pending as on the date of the order of suspension and no notice has been issued to the petitioner for revocation of his licence under Regulation 20(1) of the said Regulations, no inquiry could be said to be in immediate contemplation. The petitioner says that since an order of suspension permits a post-decisional hearing and it is possible at such post-decisional hearing that the broker may allay the misgivings of the licensing authority, the assertion in the order of suspension that an inquiry against the petitioner was in contemplation demonstrates that the post-decisional hearing would be an empty formality and the matter would progress seamlessly to the process of revocation under Regulation 20 of the said Regulations. 9. The petitioner clai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner perceives the relevant Principal Commissioner of Customs to have a closed mind and the order impugned to be without jurisdiction since the post-decisional hearing is scheduled beyond the 15-day period envisaged by Regulation 19(2) of the said Regulations. 12. Though Regulation 21 of the said Regulations permits a Customs broker "who is aggrieved by any order passed by the Principal Commissioner of Customs" to prefer an appeal under Section 129A of the Act, it is doubtful whether an appeal against an order of suspension should be entertained unless such order is demonstrably without jurisdiction or patently absurd, when there is a mechanism for a post-decisional hearing within a short time of 15 days of the suspension. 13. The petitioner has relied on a Division Bench judgment of this court reported at 1998 (104) ELT 11 (N. C. Singha v. Union of India). The judgment was rendered in an appeal arising out of the refusal by a single bench to pass an interim order in a petition challenging the suspension of a licence under the Customs House Agents Licensing Regulations, 1984. Regulation 21 (2) of the Regulations of 1984 appears to have been in pari materia with Regulation 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 19(2) of the said Regulations should, ordinarily, be adhered to; but the wording of the sub-regulation does not warrant such a construction that such periods must be strictly adhered to, or the order of suspension would dissolve thereupon. A delay of a day or two in either case may not be fatal to the order of suspension. 17. The petitioner makes much of the two limbs of the expression "may, in appropriate cases where immediate action is necessary, suspend the licence of a Customs Broker where an enquiry against such agent is pending or contemplated" appearing in Regulation 19(1) of the said Regulations. The petitioner suggests that there is no mandate to perceive the "enquiry" in the relevant expression to be an inquiry under Regulation 20 of the said Regulations and it is possible that an inquiry may be under any provision of the parent statute. It is possible to accept such argument, but it is not relevant in the present context as no inquiry was pending against the petitioner as at the date of the order of suspension. In such order of suspension asserting that an inquiry was contemplated against the petitioner, the only inquiry that it alluded to was the one under Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot be subjected to a judicial review unless it is palpably absurd. 21. As to the immediacy of the necessity to suspend a broker, it is evident that the order of suspension in this case has been passed within a short time of the licensing authority being made aware of the order of February 26, 2016 and there is nothing to the contrary that has been demonstrated by the petitioner. If the licence had been suspended or revocation proceedings had been initiated prior to the order of February 26, 2016 (in the event the licensing authority was aware of such proceedings), there may have been some basis to the petitioner asserting that the licensing authority was attempting to prejudge an issue pending consideration before an appropriate authority. In this case, the order of suspension has been passed within a short time of licensing authority being made aware of the proven misconduct on the part of the petitioner as established by the order of February 26, 2016. 22. Since an order of suspension of a Customs broker licence may be passed under the said Regulations without affording the broker any previous opportunity to explain his perceived misconduct, the invocation of this extraord ..... X X X X Extracts X X X X X X X X Extracts X X X X
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