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TMI Blog2018 (8) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is necessary and where an enquiry against such broker is pending or contemplated. It is submitted that the case on hand would clearly show that the allegation of misdeclaration was noticed by the Department on 01.03.2017 whereas the order of immediate suspension was passed on 14.03.2018, after one year, after the alleged misdeclaration was detected. 3.Further, it is submitted that in terms of Regulation 19(1) of the CBLR, the petitioner is entitled to submit their objections in continuance of the order of suspension, wherein several contentions were raised by the petitioner vide their reply dated 27.03.2018, and reiterated that in the personal hearing, on the very same day, in spite of having placed all materials, the respondent passed the impugned order continuing the suspension, which is a verbatim reproduction of the earlier order dated 14.03.2018. In support of her contention, the learned counsel placed reliance on the decision in the case of East West Freight Carriers (P) Ltd. vs. Collector of Customs, Madras reported in 1995 (77) E.L.T. 79 (Mad.) and the decision of the Division Bench of the High Court of Bombay in Babaji Shivram Clearing & Carriers Pvt. Ltd. vs. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e licence of a cusoms broker, where an enquiry against such broker is pending or contemplated. The Regulation 19 of the CBLR reads as follows: "Regulation 19. Suspension of licence. - (1) Notwithstanding anything contained in regulation 18, the [Principal Commissioner or Commissioner] of Customs may, in appropriate cases where immediate action is necessary, suspend the licence of a Customs Broker where an enquiry against such [broker] is pending or contemplated. (2) Where a licence is suspended under sub-regulation (1), the [Principal Commissioner or Commissioner] of Customs shall, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs Broker whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing gratned to the Customs Broker: Provided that in case the [Principal Commissioner of Customs or Commissioner of Customs, as the case may be] passes an order for continuing the suspension, the further procedure thereafter shall be as provided in regulation 20." 8.When a licence is suspended under Regulation 19(1) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 and the order has been validly passed. The petitioner, during the course of personal hearing, had submitted a written statement dated 27.03.2018, wherein, they questioned the justification for immediate suspension by referring to the following dates and events. Date Description of Event 25.02.2017 SB 4319410 Regd with description Goat Upper Finished leather; 25.02.2017 3 more SBs found regd with ICES for lesser no. of packages found in export shed during interception of Fortune consignment - sent for test - negative report - order passed imposing fine and penalty 01.03.2017 Specific Intelligence received by dept reg alleged misdeclaration of export goods by Fortune Leathers 01.03.2017 Shipment allegedly uplifted with LEO after Bond closing on 28.02.2017 03.03.2017 ACIU request to Oman Airways to call back cargo from Muscat (in transit) - final destination Italy 04.03.2017 Customs Officers searched sabin off premises - records for Jan 2016 till 04.03.2017 seized 06.03.2017 Intimation from airlines reg return arrival of the cargo; ACIU officers opened and 100% examination in supdt/cha presence; sample drawn for test and consignment seized under Mahazar; AA1 requeste ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the given facts and circumstances, it has to be seen as to whether the respondent was justified in invoking the power under Regulation 19(1) of the CBLR and whether there is an inordinate delay between the date on which the Air Customs received Specific Intelligence and the date on which the Commissioner of Customs / Licensing Authority suspended the petitioner's licence. In my view, there can be no straight-jacket formula for computing the time period to assess as to whether a case is one which calls for immediate suspension or not. 15.Learned counsel for the petitioner referred to the circular issued by the Board in Circular No.9/2010 and submitted that the time lines fixed therein have been violated. Circulars issued by the Board are internal aids for the Department to regulate their business. A circular cannot override a statutory regulation. The reason for issuing such circulars is on account of certain difficulties faced by certain field formulators and the Board issued guidelines to streamline the process. 16.The Court while exercising the power of judicial review, will examine as to whether there has been any error in the decision making process, as there was any arb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ petition, as it requires examination into the facts and this can be done by the Tribunal, as held by the Hon'ble Division Bench in the case of Blessings Cargo Care Pvt. Ltd. (supra).
19.Thus, for the above reasons, this writ petition is dismissed holding that the impugned order of suspension passed under Regulation 19(2) of the Regulations cannot be held to be invalid merely because the power was exercised only after the receipt of the offence report dated 27.02.2018 and the Court is convinced that the exercise of power cannot be faulted as not being the one where immediate exercise was done. In other words, in the facts and circumstances, the invocation of power under Regulation 19(1) of the CBLR cannot be held to be inappropriate. Therefore, the contention, raised by the petitioner, in this regard, is rejected. With regard to all other factual issues, the petitioner is granted liberty to file an appeal before the CESTAT and if such appeal is filed, the CESTAT while computing limitation, shall exclude the period from 13.04.2018 till the receipt of the certified copy of this order. No costs. Consequently, the connected miscellaneous petition is closed. X X X X Extracts X X X X X X X X Extracts X X X X
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