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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 ..... ing Regulations (CBLR), 2018. Central Intelligence unit (CIU), New Custom House (NCH), Mumbai Customs Zone-I had put on hold imported goods stuffed in a 40 feet container No. KOCU4976569, for which Bill of Entry (B/E) No. 8766607 dated 14.11.2023 was filed by the appellants CB on behalf of the importer M/s Good Luck Enterprises. It was alleged by CIU, NCH, Mumbai Customs that the appellants 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor of Customs, Delhi - 1999 (110) E.L.T. 696 (Tribunal); (ii) East West Freight Carriers P. Ltd. Vs. Collector of Customs, Madras - 2015 (326) E.L.T. 178 (Tri. Mum.) (iii) Devshi Bhanji Khona Vs. Commissioner of Customs, Cochin - 2009 (237) E.L.T. 509 (Tri. - Bang.) (iv) N.C. Singha & Sons Vs. Union of Inda - 1998 (104) E.L.T. 11 (Cal.) 4. Learned Authorised Representative (AR) reiterated the 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings by the officers of CIU which revealed that the goods were found mis-declared and found in violation of Notification No.44 (RE- 2000)/1997-2002 dated 24th November, 2000 and the Compulsory Registration Order (CRO) as prescribed under BIS. 11.2 Reports received the CIU also suggest that when the CB failed in the attempt for clearance of the said mis-declared and non-complaint goods without following the necessary 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 escap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.50 PM on 18.11.2023. As against this, during 100% examination of the goods kept in a sealed container No. KOCU4976569 on 21.11.2023, it was found to be having a total 964 packages, in which it has been detailed that 239 cartons were found to be having cut already. Thus, we find that there is major variation in the reporting of the facts about cut carton boxes, in both the panchanama proceedings dated 18.11.2023 and 21.11.2023 drawn by the CIU, NCH officers. 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... garding Madam/Sir, The undersigned is directed to say that references have been received in the Board that often the suspension of Customs Broker licence is resorted even in the cases which do not merit immediate suspension of licence. It is represented that this may be disruptive, especially in the case of small enterprises of Custom Brokers. 2. The matter has been examined. The Regulation 16 of CBLR, 2018 provides that notwithstanding anything contained in Regulation 14, the Commissioner of Customs 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... % examination of goods on 21-8-2018. Thereafter, the investigation went on and apparently, the CB had duly participated in the investigation before the DRI Authority. After substantial period of time, on 18-2-2019, there was no 'immediate necessity' of suspension of the licence of the CB under Regulation 16 of CBLR, 2018. The Commissioner has also failed to adduce any reason of 'immediate necessity' of exercising power under Regulation 16 of CBLR, 2018 in the impugned order. 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." 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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