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TMI Blog2017 (7) TMI 1105X X X X Extracts X X X X X X X X Extracts X X X X ..... k of the respondent, in determining the guilt of the petitioner, to pass an order of revocation, which is a violation of principles of natural justice. Appeal dismissed - decided against Revenue. - C.M.A.No.1783 of 2017 - - - Dated:- 26-7-2017 - Mr.Justice S.Manikumar and Mrs. Justice V.Bhavani Subbaroyan For Appellant: Mr.T.R.Senthil Kumar For Respondent : Mr.R.Mansoor Elahi for Mr.S.Murugappan JUDGMENT S.MANIKUMAR, J Civil Miscellaneous Appeal is directed against the Final Order No.41012 of 2016, dated 13.06.2016, on the file of Customs, Excise and Service Tax Appellate Tribunal (CESTAT), South Zonal Bench, Chennai 600 006, by which, the Tribunal, after considering the facts and circumstances o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d a report, dated 06.10.2006, holding that the allegation against the respondent as proved. Thereafter, a personal hearing was given on 07.02.2008, by the Commissioner. Thereafter, the Commissioner of Customs, Cental Excise and Service Tax, Coimbatore, vide Order-in-Original, dated 13.05.2010, has revoked the license of the respondent and also forfeited the security deposit of ₹ 1,10,000/-, furnished to the department. 5. Being aggrieved by the same, the respondent filed an appeal before the CESTAT, South Zonal Bench, Chennai, contending inter alia that there was substantial delay in concluding the proceedings, against him, from the date of suspension, ie., on 15.02.2006, to the date of impugned order, ie., on 13.05.2010. The respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Upon Order-in-Original, dated 13.05.2010, of the Commissioner of Customs, the CESTAT, Chennai, has also noticed that in paragraph 13.03 of the Order-in-Original, the Original Authority has relied on investigations and the subsequent adjudication proceedings concluded during May to August 2009-10, to hold that the respondent has failed to get authorization of the exporters and did not observe due diligence in verifying the correctness of the information given by their clients. Inquiry report of the Assistant Commissioner, was dated 06.10.2006. Personal hearing was given on 07.02.2008. On the basis of the investigation and adjudication proceedings, concluded during May to August 2009-10, ie., two years after the conclusion of the inquiry, an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erations 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 restrictive alternative. [Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; Wade Forsyth: Administrative Law (2005), p. 366; Mukul Kumar Choudhuri - (2009) 15 SCC 620]. What is otherwise within the discretionary domain and so ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsion 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 of the infraction and the mitigating circumstances. The difference in approach for consideration of cases warranting revocation or suspension has to be borne in mind while dealing with individual cases. The proportionality question is of great signi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 016, has found that the Original Authority had relied on investigation and subsequent adjudication proceedings, concluded during May to August 2009-10, to hold that the respondent has failed to get authorization of the exporters and did not observe due diligence in verifying the correctness of the information given by their clients. 12. Admittedly, the Original Authority had taken note of the materials behind the back of the respondent, to pass an order of revocation. Suspension of licence has been made on 15.02.2006. Show cause notice was issued on 08.06.2006. Thereafter, the Assistant Commissioner has submitted a report on 06.10.2006, holding that the allegation against the respondent as proved. Thereafter, a personal hearing was given ..... X X X X Extracts X X X X X X X X Extracts X X X X
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