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2020 (11) TMI 592 - AT - CustomsContinuation of Suspension of Customs Broker License - Smuggling - foreign origin cigarettes - Regulation 19(2) of CBLR, 2013 - appellant has failed to verify the antecedent and functioning of the client by using reliable and independent sources - violation of provisions of Regulation 11(n) of CBLR, 2013 - cross-examination not allowed - Violation of principles of natural justice - HELD THAT:- The learned Commissioner has not allowed cross-examination at his level but depended on the enquiry report wherein the cross-examination of Mr. Maswood Ahmed but it was held that cross-examination of Shri Abid Ali could not be undertaken. We find that this is not the spirit of the order of this Bench. Instead of delegating the directions given by this Bench to the Enquiry Officer, the Commissioner should have himself allowed the cross-examination as directed by this Bench during the personal hearing. Moreover, we find that Commissioner has given cryptic findings on the alleged violation of Regulation 11 (n) of CBLR, 2013 by the Custom Broker. As submitted by the appellants, he has not given any reasoning or findings of his own. To this extent, learned Commissioner has again violated the principles of natural justice. Regulation 11(n) of the Customs Broker Regulations, 2013 - HELD THAT:- The said Regulation stipulates that: - “A Customs Broker shall verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client at the declared address by using reliable independent, authentic documents, data or information.” Though the Customs Broker has been maintaining that as the importer Shri Abid Ali was always present during the course of investigation and presented himself before the authorities a need for independent verification had not arisen. We find that such an argument is not acceptable. Looking into the circumstances of the case where it is not the case of the department that the importer is either absconding nor traceable, the omission on the part of the Customs Broker becomes a bit less serious. Shri Abid Ali has presented himself as the importer and signed all the documents. He has also submitted himself before the authorities for questioning, recording of statement and investigation. Under the circumstances, though there was lapse on the part of the Customs Broker, the same has not caused the commission of offence by the importer. Therefore, the Customs Broker erred inasmuch as non verifying the antecedents of the importer. The punishment meted out to the Custom Broker should be commensurate with such omission. It is a settled law that penalty should be proportionate to the offence committed. It would be too harsh to revoke the license of the Customs Broker and to leave the right to livelihood of the Customs Broker as well as his employees to the wind. The fact that the Customs Broker’s license was suspended/revoked for a considerable period also needs to be taken on to account. The impugned order is modified by setting aside the revocation of Custom Broker License and upholding the forfeiture of security deposit - Appeal allowed in part.
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