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TMI Blog2019 (9) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... h its CB licence became liable to revocation by the Commissioner or for the Commissioner to be satisfied that the appellant had rendered itself unfit to transact any business in the Customs Station. In the absence thereof, the impugned order is contrary to Regulation 18(c) of CBLR - Further, in the show cause notice there is no allegation of any omission or commission, under either the Act or the CBLR, by the appellant as a Customs Broker. There is also no allegation that the appellant was involved with importation of any of the subject consignments involved or in any manner aided or abetted the importation of the subject consignments or in the alleged wrongful actions in the said importation by the persons concerned. There is also no material disclosed in either the Inquiry Report or the impugned order as to how and on what basis it could be held that the appellant had failed to bring the alleged serious lapses of Sadguru Forwarders Pvt. Ltd. to the Customs authorities, in the absence of there being any evidence on record to establish that the appellant firm was aware of the alleged activities of the said Sadguru Forwarders Pvt. Ltd. It is thus apparent that this finding is bas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed on show cause notices issued by the DRI authorities, the appellant was called upon to show cause, as per the provisions of Regulation 20(1) of CBLR, as to why the Custom Broker Licence (in short, CB licence ) issued to it should not be revoked and the security deposit furnished by it should not be ordered to be forfeited under the provision of Regulation 18 of CBLR, since the appellant had allegedly committed misconduct which had rendered it unfit to transact business in the Customs Station. 4. Pursuant to the issuance of the said show cause notice, an inquiry was held by the Inquiry Officer appointed by the Commissioner, in which the appellant participated. An Inquiry Report under Regulation 20(5) of CBLR was thereafter submitted by the Inquiry Officer to the Commissioner upholding the allegation in the show cause notice and recommending revocation of the appellant s CB licence and forfeiture of security deposit under Regulation 18 of CBLR. 5. By a letter dated August 6, 2018 the Assistant Commissioner of Customs, Customs Brokers Section, Customs House, Kolkata, served a copy of the Inquiry Report to the appellant and called upon the appellant to, as per the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation 11 was contravened or violated by the appellant in any manner whatsoever. There is also no allegation that the appellant had contravened any other regulations of CBLR, including Regulation 10 thereof. In the absence of such an allegation and consequent finding based thereon, no proceeding can be initiated under the CBLR and/or the Act for revocation of the appellant s licence or for imposition of penalty in terms of Regulation 18 of CBLR, including Regulation 18(c) thereof. As such the impugned order and the Inquiry Report on the basis whereof the same has been passed, as well as the show cause notice, are all without authority of law and unsustainable, the conditions precedent for issuing and/or passing thereof respectively having not been satisfied. (iii) The new case introduced by the Commissioner in the impugned order of the appellant not complying with Regulation 11(d) of CBLR since, though the appellant was not a Customs Broker on record, it had deliberately failed to bring the alleged serious lapses of the engaged Customs Broker, Sadguru Forwarders Pvt. Ltd. of the Customs authorities, is neither in the show cause notice nor in the Inquiry Report. There is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of time to all Customs Brokers operating under a valid licence in the NSCBI Airport, Kolkata and their representatives/employees, as a goodwill gesture in view of the fact that none of the other Customs Brokers had installed a computer in any of their offices in the said Airport. Moreover, Md. Nasir Uddin was an exemployee of the appellant until December 2016 and hence as a courtesy the appellant allowed Md. Nasir Uddin to receive the emails using the appellant s computer. This bona fide act on the part of the appellant in no manner whatsoever implicates the appellant in the alleged acts of omission and commission by those alleged, including, inter alia, Sajal Das nor can on the basis of this alone the appellant be held to have committed a misconduct as envisaged under Regulation 18(c) of CBLR. (vii) Further and in any event, it would be ex-facie evident from the show cause notice, Inquiry Report and the findings in the impugned order that even the case made out against Sajal Das, the appellant s partner, has no merit or substance and is evidently untenable and unsustainable. It would evident therefrom, as well as the statements of Sajal Das and Md. Nasir Uddin relied upon, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elongs to and is owned exclusively by one Chandan Das as its sole proprietor. The appellant or its partner Sajal Das is neither associated with the said firm nor any of them is beneficiary of purported payment made to Nirmala Bala Trading. This material fact has also been ignored inspite of attention being drawn thereto. (xi) By the impugned order passed by the Commissioner the appellant has been irreparably prejudiced for no fault of its. The appellant has 25 employees. The livelihood of the appellant and its said employees and their respective families have been seriously prejudiced by the impugned order, which has been passed on patently erroneous premises of both fact and law. 8. On behalf of the Revenue, Shri A.K.Singh, learned Authorized Representative has reiterated the findings of the Commissioner in the impugned order. 9. Regulation 18(c) empowers the Principal Commissioner or the Commissioner of Customs to either revoke the licence of a Customs Broker and order for forfeiture of part or whole of the security furnished by it or impose penalty not exceeding ₹ 50,000/- in case of the Customs Broker committing any misconduct , which in the opinion of the Princ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms, as the case may be. We find that the impugned order itself acknowledges that the appellant was not a Customs Broker on record. Hence it is established that none of the importers/persons concerned were clients of the appellant. There was thus no requirement on the part of the appellant under Regulation 11(d) to give any advice to a non-existent client to comply with the provisions of the Act or in noncompliance thereof bring the matter to the Deputy Commissioner or Assistant Commissioner of Customs. Thus Regulation 11(d), as rightly contended by the appellant, is inapplicable. Therefore, the question of the appellant not complying with its obligation under Regulation 11(d) of CBLR did not arise. The contrary finding of the Commissioner is thus erroneous and untenable. 13. Moreover we find that this allegation of the appellant not complying with Regulation 11(d) is neither in the show cause notice nor in the Inquiry Report. The Commissioner has therefore traversed beyond the show cause notice. For this reason also, as held by the Hon ble Supreme Court in CCE Vs. Gas Authority of India Ltd. (supra) and the decisions of the Hon ble Gujarat High Court and the Tribunal relied u ..... X X X X Extracts X X X X X X X X Extracts X X X X
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