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TMI Blog2024 (11) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... the MoD CFS at 19.01 Hrs. on 18.11.2023. Even though it may be a fact that the container was not allowed to be moved out from the MOD CFS by the Customs officer posted at the gate office of said MOD CFS, the facts as indicated above in the B/E, do not support the allegations against the appellants CB, that they had indulged in illegal activities of removing the Container and taking it back to the examination area. On examination of the imported goods and giving permission for moving out of the CFS, are part of the duties of the customs officers posted at the MOD CFS and the responsibilities of the custodian of MOD CFS. Therefore, any illegality therein cannot be blamed against the appellants CB. We do not find that in terms of instructions of CBEC, any clear-cut findings, reasons were given by the learned Principal Commissioner in the impugned order for immediate suspension and/or its continuation, and therefore we have no hesitation to hold that the instructions laid down by CBIC had not been followed in this case. From the above discussion and analysis, we are of the considered view, that there is no sufficient and reasonable grounds made out in the impugned order, in respect of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ants had taken back the impugned container, when it was about to be taken out of the MOD Container Freight Station (CFS), back to the examination area, opened and de-stuffed with about 150 packages, which were left lying outside the container. The said incident was recorded under panchanama proceedings drawn by CIU on 18.11.2023. it was also alleged that the appellants had tried to mislead the CIU officer that examination was being conducted and that out of charge was given erroneously for the said container. During detailed examination of 100% of the cargo conducted by CIU subsequently on 21.11.2023, it was found that there were gross mis-declaration of the quantity of the imported goods; Further, it was also found that there was under-valuation of tempered glass, and nonavailability of certificates for adherence to BIS standards, Equipment Type Approval (ETA) certificates and mandatory declaration under DGFT Notification No.44 (RE-2000)/1997-2002 dated 24.11.2000. Therefore, the Department prima facie concluded that the appellants have violated the provisions of Regulations 10(d), 10(e), 10(m) and 10(n) of CBLR, 2018. 2.2. On the basis of offence report received from CIU, NCH, Mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... findings made by the Principal Commissioner of Customs (General) in the impugned order and submitted that as there is violation under sub-regulations (d), (e), (m) and (n) of Regulation 10 ibid, separate inquiry proceedings have been initiated by the Principal Commissioner. The appellants CB unauthorizedly moved back the container to the examination area and opened the same; as they attempted to take delivery of the goods illegally, which was stopped by the Preventive Officer of Customs posted at the gate of MOD CFS. Thus, learned AR justified the action of Principal Commissioner of Customs (General) in immediate suspension of the appellant s CB license, and its continuation in the impugned order and stated that the same is sustainable in law. 5. Heard both sides and perused the case records. We have also considered the additional written submissions given in the form of paper books by learned Advocates for the appellants as well as Authorised Representative for the Revenue. 6.1. The short issue for consideration before the Tribunal in this case is to decide whether immediate suspension of the appellant Customs Broker s license under Regulations 16(1) of CBLR, 2018 and the continu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary procedure of examination, they unauthorizedly moved back the said container to be examination area and opened the said container in spite of the CIU hold. The said act was done by the CB to hoodwink the CIU authorities so that they for may escape from the clutches of law. 11.3 As per the mandate of this CBLR, 2018, it was the responsibility of the CB to inform the respective Docks, DC/AC that the OOC has been granted erroneously, by the Department and he should not have gone ahead with the illegal removal. On the contrary they tried to take delivery of the said goods. Hence, the intent of the CB to clear the goods illegally is apparent. The claim that the goods were pending for examination at the time of interception is nothing but an afterthought to escape from the penal consequences of their act in this case 12.1 . Further, despite knowing that the goods were not examined the CB being attempted to gate out the goods from the MOD . 12.5 Further, in respect of specific violation of regulation 10(d), 10(e), 10(m) and 10(n) of CBLR, 2018, I observe that the separate proceedings under regulation 17 of the CBLR, 2018 shall be initiated and therefore discussion on them at this stage ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficers. Hence, such incorrect details cannot be taken as evidential facts to prove that the appellants CB had attempted to open the container and unload around 150 packages, within a gap of an hour and few minutes of the container being refused to be moved out, as reported in the impugned order. Moreover, the total number of 965 packages shown in the packing list and the Bill of Lading relevant to the B/E in this case also tally, even though there could be variation in the individual items of such cartons. The factual details have not been verified and brought on record by the learned Principal Commissioner to prove the allegations against the appellants CB, in ordering immediate suspension for such act by the appellants CB. 6.5 On careful perusal of the B/E No. 8766607 dated 14.11.2023, more particularly at column H providing details of Processing Details , it is mentioned that the said B/E was submitted by the appellants before the customs authorities on 14.11.2023 at 21.06 Hrs.; thereafter, the said B/E was assessed on 15.11.2023 at 11.13 Hrs.; and the goods were examined on 18.11.2023 for which the examination report was made at 18.58 Hrs. and the imported goods were given Out- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms may, in appropriate cases where immediate action is necessary, suspend the licence of a customs broker, where the enquiry against such customs broker is pending or contemplated. 3 . Since the power is specified to be exercised in specified circumstances, that is, the appropriate cases where immediate action is necessary, it indicates that suspension is not visualized for application in a manner routine or mechanical or in every case. This aspect is to be kept in view by the Commissioner of Customs in the course of considering a proposal to suspend the licence of a customs broker. Before doing so, the Commissioner should also take the care also of recording his/her reasons as to why it is considered an appropriate case where immediate action of suspension is necessary. We do not find that in terms of above instructions of CBEC, any clear-cut findings, reasons were given by the learned Principal Commissioner in the impugned order for immediate suspension and/or its continuation, and therefore we have no hesitation to hold that the instructions laid down by CBIC had not been followed in this case. 8. In this regard, we find that in the case of N.C. Singha (Supra), the Hon ble Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10 . In the case of N.C. Singha Sons v. UOI [1998 (104) E.L.T. 11 (Cal.)], the Hon ble High Court, Calcutta has held that, 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. [Para 6] 11 . Also, in the case of East West Freight Carriers (P) Ltd. v. Collector of Customs, Madras [1995 (77) E.L.T. 79 (Mad.)] the Hon ble High Court, Madras has held that, In the absence of any indication that there was application of mind by the Collector on the aspect as to whether immediate action was necessary, in my opinion, the impugned order cannot be sustained. The Collector gets jurisdiction to suspend that licence in cases where immediate action is necessary. [Para 9] 12 . Though Customs House Agents Licensing Regulations, 1984 has been subse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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