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TMI Blog2016 (6) TMI 864X X X X Extracts X X X X X X X X Extracts X X X X ..... y on the investigation and adjudication (under Customs Act, 1962) done in 2009-10 is legally untenable. Clearly, the adjudicating authority considered developments/purported evidences that arose three years after the proceedings were initiated and inquiry completed. This is in clear violation of principle of natural justice. The loss of more than ten years of business and livelihood for the appellant cannot be allowed to continue. Applying the doctrine of proportionality as well as the fact that the impugned order travelled beyond the notice, we hold that both the grounds as agitated by the appellant are tenable to set aside the impugned order. - Decided in favor of CHA - C/00328/2010 - FINAL ORDER NO. 41012 / 2016 - Dated:- 13-6-2016 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner in pursuance of the show-cause notice and he submitted a report holding that the allegation against the appellant stand proved. The enquiry report was dated 06.10.2006. Thereafter, the learned Commissioner held a personal haring on 07.02.2008. As no final order was passed by the learned Commissioner, the appellant approached the Honble Madras High Court by way of a Writ Petition No.4342 of 2010. The Hon ble High Court noted the delay in disposal of the appellant s case and directed the learned Commissioner vide their order dated 16.04.2010 to decide the case within four weeks. The present impugned order came to be passed on such direction. The original authority by his order revoked the license of the appellant and also forfeite ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Customs (I G) reported in 2014 (302) E.L.T.161 (Del.), which was affirmed by the Honble Supreme Court in the case of Commissioner v. Ashiana Cargo Services reported in 2015 (320) E.L.T. A175 (S.C.)] to reiterate his plea that the consequences of the appellants misdemeanor, if any, resulted in his being out of business for more than ten years, which even if considered blame worthy act is disproportionate to the misdemeanor, if any, on their part. 3. The learned Authorised Representative strongly contested the submissions made by the learned counsel. He stated that the appellant is actively involved in processing more than 400 shipping bills, which resulted in mis-declaration and loss to the Government by way of ineligible ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se grounds. We note that in para 13.03 of the impugned order the original authority relies on investigations and the subsequent adjudication proceedings concluded during May to August 2009-10 to hold that the appellant failed to get authorization of the exporters and did not observe due diligence in verifying the correctness of the information given by their clients. The notice which resulted in the impugned order was dated 08.06.2006 and inquiry report was dated 06.10.2006. It is clear that reliance placed by the original authority on the investigation and adjudication (under Customs Act, 1962) done in 2009-10 is legally untenable. Clearly, the adjudicating authority considered developments/purported evidences that arose three years after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality places in focus the true nature of the exercise - the elaboration of a rule of permissible priorities. Proportionality involves balancing test and necessity test . While the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests, and a manifest imbalance of relevant considerations, the latter (necessity test) limits infringement of human rights to the least re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s currency irretrievably. Suspension/revocation, as the case may be, has to be directed looking to the gravity of the situation in the background of the facts. For minor infraction, or infractions which are not of a serious nature, an order of suspension may suffice. On the contrary, when revocation is directed it has to be only in cases where the infraction is of a serious nature warranting exemplary action on the part of the authorities for, otherwise, two types of actions would not have been provided for. Primarily it is for the Commissioner to decide as to which of the actions would be appropriate but, while choosing any one of the two modes, the Commissioner has to consider all relevant aspects, and draw a balance sheet of the gravity ..... X X X X Extracts X X X X X X X X Extracts X X X X
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