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2022 (12) TMI 1251 - AT - CustomsSuspension of Customs Broker License - propriety of the deprivation - Clearance of PVC coated fabric width 54”’ packed in 917 rolls - HELD THAT:- From the statutory prescription, it is abundantly clear that there is no procedural fetter on ordering suspension of licence except for determination of immediacy when enquiry is pending or contemplated against a customs broker; however, continuation of suspension will be maintainable only upon affording opportunity for ‘post-decisional’ hearing in compliance thereof with stipulated timelines. The mandate of process is, invariably, observed in letter but, as it happens all too often, disregarding the harmonious construct of the provision as a whole: that, if inquiry has been only contemplated at the time of suspension, continuation of suspension is contingent upon crystallizing intention to take recourse to regulation 17 of Customs Broker Licencing Regulations, 2018 and that, either during pendency or mere contemplation of enquiry, the consequence of non-suspension outweighs deprivation caused by suspension. The latitude, and restraint, inherent in the design of regulation 16 of Customs Broker Licencing Regulations, 2018 thus revealed upon careful perusal is made more conspicuous by the appending of the non obstante clause: suspension is not a necessary pre-requisite for initiation of inquiry with intent to revoke licence or impose penalty and, while intention so to do has no bearing on suspension, decision to proceed with enquiry is inevitable precursor for continuation of suspension. It is the latter that we are concerned with in resolving this dispute - The allegation of substitution of samples has not attained final determination as fact and there is no evidence, as yet, linking the appellant to the allegation except by way of vicarious responsibility for misconduct of employee. It may not appear unreasonable for the appellant, as licencee, to be considered as accountable for acts of omission and commission on the part of its employees. The involvement of an individual, remunerated by the appellant, in alleged substitution of samples drawn by customs authorities was the cause for suspension. The continuation of suspension in the impugned order, sought to be justified by relying on confessional statements, does not go beyond that allegation at this stage. The individual concerned does not possess any status under the Regulations and act of his, in any capacity whatsoever, is beyond the scope of retribution under the Regulations. To foist deprivation of livelihood as licencee merely on inference, lacking legal foundation and devoid of procedural sanctity, is improper and our countenance of such will be approval of misadventure. The ends of justice can be met only by restoration of the license to the appellant while making it abundantly clear that this restoration will not have any impact on further investigations or further proceedings under the appropriate provisions in Customs Broker Licensing Regulations, 2018 that lies within the empowerment conferred on the licencing authority upon completion of investigation - Appeal allowed.
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