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TMI Blog2024 (6) TMI 640X X X X Extracts X X X X X X X X Extracts X X X X ..... cepted the enquiry report partially in imposing such a penalty on the respondent. If the Tribunal had discarded, the enquiry report in its entirety, which it could not have done, in view of the pronouncement of this Court in ASIAN FREIGHT (UNIT OF ESAN FREIGHT TRAVEL PVT. LTD.) AND ORS. VERSUS THE PRINCIPAL COMMISSIONER OF CUSTOMS (AIRPORT ADMINISTRATION) , CUSTOMS HOUSE AND ORS. [ 2016 (8) TMI 1362 - CALCUTTA HIGH COURT] and M/S. OTA FALLOONS FORWARDERS PVT. LTD. VERSUS UNION OF INDIA ANOTHER [ 2018 (6) TMI 656 - CALCUTTA HIGH COURT] which were binding upon it, at that material point of time, then, the order under appeal before the Division Bench could not have been sustained. Again, the Division Bench has noted that, the Tribunal has accepted a portion of the enquiry report and therefore, the Division Bench has proceeded to uphold the order of the Tribunal impugned before it. The Adjudicating Authority while dealing with the proceeding under Regulation 20 of the Regulations of 2013, is called upon to take into consideration the materials proved before it. Absence of the broker before it or refusal of the broker to participate in the adjudication proceedings does not vest the brok ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n received by the appellant from the Commissioner of Customs (Preventive), Kolkata. By an order dated June 19, 2015 the customs authorities had suspended the operation of the Customs House Agent (CHA) License of the respondent, with immediate effect under Regulation 19 of Customs Brokers Licensing Regulations, 2013. A post decisional hearing had been granted to the respondent under Regulation 19 (2) of the Regulations of 2013 on June 22, 2015. Suspension of the respondent had been confirmed on June 24, 2015. A Show Cause Notice under Regulation 20 (1) of the Regulations of 2013 had been issued to the respondent on July 31, 2015. The respondent had filed a writ petition being WP No. 1076 of 2015 challenging the Order in Original dated May 15, 2015 as well as the Show Cause Notice dated July 31, 2015. 6. Customs authorities had completed the enquiry under Regulation 20 (5) of the Regulations of 2013 on December 17, 2015 and the enquiry report was supplied to the respondent by a letter dated December 21, 2015. 7. By an order dated January 6, 2016, WP No. 1076 of 2015 had been disposed of by directing the respondent to approach the Tribunal. The respondent had preferred another writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the matter leading up to the impugned order of the learned Tribunal. He has contended that, the Division Bench was unanimous with regard to the provisions of the Regulations of 2013 being directory in nature. He has contended that, the reference should be disposed of by holding that the time period specified in completing the enquiry and submitting the enquiry report are directory in nature. 13. Learned advocate appearing for the respondent has submitted that, there is a difference of opinion amongst the High Courts with regard to the issue as to whether, the time period for completing the enquiry and submitting the enquiry report was mandatory or directory. He has drawn the attention of the Court to 2017 SEC online Mad 7084 (Santon Shipping Services vs. Commissioner of Customs), 2018 (360) ELT 879 (Del) (Necko Freight Forwarders Ltd. vs. Commissioner of Cus. (General)), 2018 (361) ELT 731 (Del) (Harjeet Singh Johar vs. Commissioner of Customs (General)), 2019 (367) ELT 200 (Mad) (Sabin Logistics Pvt. Ltd. vs. Commissioner of Customs, Chennai-VIII), 2019 (368) ELT 319 (Mad) (Kalki Shippiing Associates vs. Commissioner of Customs, Chennai-VIII), 2019 (368) ELT 1059 (Mad) (Carew ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ls and authorities functioning under this High Court. In the event it is contended that, by the impugned order in the appeal Tribunal has discarded the enquiry report in view of the breach of the timeline prescribed under Regulation 20 (5), then the impugned order of the Tribunal cannot be sustained in such context. However, in the facts and circumstances of the present case, the Tribunal has accepted a portion of the impugned order so far as forfeiture of the security deposit of the respondent is concerned. Therefore, in the facts and circumstances of the present case, it cannot be said that, the Tribunal has rejected the enquiry report or the order impugned before it in its entirety purely on the ground of the timeline prescribed under Regulation 20 (5) of the Regulations of 2013 being breached. 17. No doubt, the Adjudicating Authority, which would obviously include the Tribunal has the discretion to attach such weightage as is permissible in law to the enquiry report, albeit submitted in breach of the timeline prescribed under Regulation 20 (5) of the Regulations of 2013, in deciding on the quantum of punishment or the relief, to be imposed or granted, as the case may be. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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