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2023 (4) TMI 785 - AT - CustomsSuspension of Customs Broker License - restricted goods - immediate action required as specified under Regulation 16(1) CBLR 2018 - illegal attempt (on the part of Customs Broker) to import the ‘restricted goods’ namely second-hand ‘Data Processing Servers’ without having mandatory documents - HELD THAT:- The import of second hand goods is ‘restricted’ and importable only against an authorization from DGFT. Also, Data Processing Servers are notified goods at Sl.No.15 of Electronics and IT Goods (Requirements of Compulsory Registration) Order, 2012 (hereinafter referred as CRO, 2012) as amended from time to time and the import is ‘restricted’ and attracts mandatory BIS certification and import of unregistered/non compliant notified products as in CRO, 2012 as amended, is prohibited. As per para 2.13 of Foreign Trade Policy (2015-2020), regarding “Clearance of Goods from Customs against Authorization”, the filing of Warehousing Bill of Entry, in case of ‘Restricted goods’ is not available - However, in the present case, the importer has imported the second hand goods and filed the Bill of Entry for Warehousing without having any valid authorization which violates the provisions of Para 2.13 of Foreign Trade Policy (2015-2020) as amended from time to time. 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, the 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. It is observed that the goods in question have been received in the Port area on 23.02.22 and the Customs Broker has filed the warehousing Bill of Entry on 31.05.22. The Customs Broker was issued the CB Order 19.12.22 and the same was confirmed on 10.01.23. It is observed that after filing of the warehousing Bill of Entry by the Customs Broker, the SIIB (Port) has initiated the investigation against the imported consignment and issued a Show Cause Notice dated 19.02.2022 - the investigation in this case has already completed and there is no urgent necessity warranting restriction on the Customs Broker. Immediate suspension of the Customs Broker is warranted when there is an apprehension that the CB may interfere in the investigation or tamper with any evidence which will be detrimental to the investigation. There is no such apprehension in this case, as the investigation has already been completed and Notice issued. Thus, there is no urgent necessity to suspend the license of the CB. The clearing agent has filed the warehousing Bill of Entry, as the importer was not having the mandatory documents. Arranging the documents is the responsibility of the importer. There are no fault with the Customs Broker for not arranging the documents before importation of the second hand goods. As the mandatory documents could not be arranged in time, the Customs Broker has advised the importer to file Warehousing Bill of Entry to save demurrage charges. Even though warehousing is not permissible for second hand goods, they filed warehousing bill of entry only to minimize the loses and opted for First check. It is observed that they have opted for first check on their own and fully cooperated with the investigation by the SIIB (Port) - The enquiry proposed under Regulation 17 of CBLR, 2018 can go on even without suspension of the license. After completion of the enquiry, the Competent Authority will decide whether revocation of license is warranted or not in this case - there are no merits of the case as to whether the CB has violated Regulations 10(d), 10(e), 10(f) and 10(m) of CBLR, 2018 or not, as alleged in the notice. That decision will be taken by the competent authority after completion of the Inquiry proceedings. The suspension of the licence is not warranted in this case, at this stage, after completion of the investigation and issue of Show Cause Notice - Appeal allowed.
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