9911796707
TMI Blog2023 (10) TMI 243X X X X Extracts X X X X X X X X Extracts X X X X ..... 74 - CESTAT KOLKATA ]. Since, this alleged offence was also well within the knowledge of the department, suspension of the license, if any, warranted could have been initiated along with the other offence where their License was suspended. The action of the department in waiting for more than four years and suspending the License immediately after setting aside the earlier revocation order, cannot be sustained in the eye of the law. Thus, there is no immediate necessity to suspend the license. The Commissioner has not recorded any valid reason warranting immediate suspension of the License. Accordingly, the impugned order suspending the License is liable to be set aside - appeal allowed. - HON BLE MR. ASHOK JINDAL MEMBER ( JUDICIAL ) And HON BLE MR. K. ANPAZHAKAN MEMBER ( TECHNICAL ) Shri R. N. Bandapadhyay , Advocate for the Appellant Shri Tariq Sulaiman , Authorized Representative for the Respondent ORDER PER K. ANPAZHAKAN : The Appellant, M/s. S.K. Kanjilal, is a Customs Broker(CB in short) having License No. S-90, Code No. 2235 issued by Commissioner of Customs (Airport Administration), with validity upto 16.05.2026. An Offence Report ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsible for any declarations made in the import/export documents, unless there is evidence to show that the CB has prior knowledge on the alleged mid-declaration. In this regard, the Appellant placed their reliance on the decision in the case of Kunal Travels(Cargo) vs CC(I G), IGI Airport, New Delhi (354-ELT-447), wherein it has been held that the CHA is not an Inspector to weigh the genuineness of the transaction. 5. The Appellant has relied upon the following decisions in support of their contention that immediate suspension is warranted in this case. (i) Rubee Air Freight Ltd. v. CC (Airport Administration), Kolkata [2010 (257) E.L.T. 20 (Cal.)] (ii) M.K. Saha Company Vs. Commissioner of Customs (Airport Administration), Kolkata [2021 (376) E.L.T. 534 (Tri.-Kolkata), (iii) N.C. Singha Sons v. Union of India [1998 (104) E.L.T. 11 (Cal.)], 6. The Appellant submits that their CB License has already faced suspension, for another alleged offence during the same period. The department is trying to make a case to show them as a recurring offender. Accordingly, they contended that the impugned order suspending their License is not sustainable and prayed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oms, as the case may be, passes an order for continuing the suspension, further procedure thereafter shall be as provided in regulation 17. 10. It is observed that Regulation 16(1) provides for suspension of license of the Customs Broker where an inquiry against them is pending or contemplated. It is required only in appropriate cases where immediate action is necessary. Thus, we find that suspension of CB license is not a mandatory requirement in all cases. Suspension of CB license is resorted only in cases where immediate action is warranted. In their submissions, the Appellants stated that in this case the investigation has already been completed and there is no urgent necessity to suspend the license of the Customs Broker to initiate immediate action. The Appellant has cited the decision of the Hon ble Calcutta High Court s in the case of Rubee Air Freight Ltd. v. CC (Airport Administration), Kolkata [2010 (257) E.L.T. 20 (Cal.)] wherein it has been held that immediate suspension of the license of Customs Broker is not warranted when there is no urgent necessity. Relevant portion of the order is reproduced below:- 2. The power of the Commissioner of Customs t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... equired of the clearing agent. 8. The Managing Director of the petitioner No. 1 allegedly made a statement to the effect that he did not know the importer. One Papu used to bring documents such as invoices, packing lists and bills of lading and the petitioner stamped the same as per his declaration. 9. The petitioners have made a specific averment on oath that the consignment was cleared by the petitioner No. 1 through its authorized employee and Papu only remained present as the representative of the petitioner. 10. In course of hearing, it was submitted that the consignment was cleared by one Sri Tapas Kr. Mukherjee, an employee of the petitioner No. 1, who had duly cleared the G-pass examination and had a valid customs pass. 11. It is also difficult to understand how customs authorities could have allowed a wholly unauthorised person to clear consignment. The customs authorities could not have allowed the clearance unless an authorised representative of the clearing agent was present. The observation is, however, only a prima facie observation. In any case, the contravention alleged, prima facie, did not warrant immediate suspension. 12. Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The Hon ble High Court of Calcutta in the case of Rubee Air Freight Ltd. v. CC (Airport Administration), Kolkata [2010 (257) E.L.T. 20 (Cal.)] at Para 3 held that, The power to suspend a licence is, however, drastic and entails irreversible civil consequences for the licencee. The power to suspend thus, ought to be exercised cautiously. 13. We find that in the present order also, the Commissioner has not applied his mind on the aspect as to whether immediate action was necessary and thus, on this ground alone the order of continuation of suspension of the CB licence of the appellant fails. 17. We accordingly modify the impugned Order-in-Original dated 6-3- 2019 by setting aside the suspension of the CB licence of the appellant only. The other part of the Order-in-Original relating to proceeding under Regulation 17 of CBLR, 2018 shall continue in accordance with law. The Commissioner of Customs (Airport Administration), Kolkata shall issue necessary order/circular immediately allowing operation of the CB licence of the appellant. 12. In the case of N.C. Singha Sons v. Union of India [1998 (104) E.L.T. 11 (Cal.)], the Hon ble Calcutta High Court has held a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the power under Regulation 21(2). That order, in our opinion, is not sustainable because it does not spell out that any immediate action is required to be taken in the matter nor does the order on its face indicate that such action was indeed warranted. 13. We observe that Regulation 16(1) of CBLR, 2018 allows suspension of the License in appropriate case where immediate action is necessary. In the instant case, the Commissioner has not adduced any reason of 'immediate necessity' to exercise the power under Regulation 16(1) of CBLR, 2018 to pass the impugned order. We observe that an Offence Report dated 26.05.2023 was issued by the Additional Commissioner of Customs, SIB (Port), Custom House, Kolkata, wherein it was alleged that the Appellant has facilitated the attempted overvaluation in the export consignments of M/s Axon International under three shipping bills, all dated 25.04.2019. The Appellant stated that the investigation in this case has already completed and there is no urgent necessity warranting suspension of the CB. Immediate suspension of the Customs Broker is warranted when there is an apprehension that the CB may interfere in the investigation or ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
