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2021 (9) TMI 380 - HC - CustomsSuspension of Customs Broker License - Deemed Suspension or automatic suspension? - validity of respondents’ action of displaying of “Alert” in the Customs EDI system - infringement of petitioners’ right to livelihood and right to carrying on its business - Section 154 of the Customs Act, 1962 - “Security deposit” has the same nature and character legally as of “Duty” and “Penalty” or not - pre-deposit of the penalty amount imposed in the original adjudication order - pre-deposit would amount to automatic stay or revocation of the order of the forfeiture of security deposit passed in the original adjudication order - HELD THAT:- The impugned action of suspending Customs Broker Licence of the petitioner which is penal in nature depriving livelihood of the petitioner, is not supported by any provision of law and has no legal sanction and is not sustainable in law since it is settle position of law that every action of the statutory authority must be supported by legal provisions and authorization by the statute and a statutory authority cannot act or do anything which has not been authorised under the law and it shall act only in the manner it has been authorised by law - The impugned order of corrigendum under Section 154 of the Customs Act, 1962 is not sustainable in law since in the name of rectification of clerical or arithmetical or typographical mistake neither any additional penal order of suspension of licence can be inserted nor any fresh condition can be imposed for restoration of Customs Broker licence when the punishment of suspension of licence itself had no existence in the original order of adjudication. Whether the term “Security deposit” has the same nature and character legally as of “Duty” and “Penalty”? - whether by mere pre-deposit of 7.5% of the penalty amount imposed in the original adjudication order, in filing the appeal would amount to automatic stay or revocation of the order of the forfeiture of security deposit passed in the original adjudication order against which appeal has been filed? - HELD THAT:- The term “Security deposit” cannot be equated with the term “Penalty” or “Duty” and their nature and character are totally different since security deposit does not arise out of any demand and “Security Deposit” is a condition precedent for granting Customs Broker Licence while the “Duty” and “Penalty” arise out of a transaction and adjudication proceeding and security deposit has nothing to do with “Duty” or “Penalty” which arise out of an adjudication proceeding. Petitioner itself before filing the appeal has made predeposit of 7.5% of the penalty only which was imposed in the adjudication proceeding and not any pre-deposit of any percentage of amount of the security deposit - On perusal of Section 129 E of the Customs Act, 1962, it is found that it talks only about pre-deposit of certain percentage of duty demand or penalty imposed before filing appeal and nowhere it talks anything about the security deposit. Considering the circulars and relevant provisions of Customs Act etc., only by mere pre-deposit of 7.5% of the penalty in filing appeal against the order of adjudication imposing both penalty and forfeiture of security deposit, order of forfeiture of security deposit will not stand stayed/revoked automatically unless specific order of stay of the same or is revoked by the appropriate authority. This position becomes more clear from the conduct of the petitioner that it has made pre-deposit of 7.5% of the penalty only and not pre-deposit of any percentage of amount of security deposit which has been forfeited by the adjudicating authority. There is no existence of any provision of “Deemed Suspension” or “automatic suspension” of licence of a Customs Broker under the Customs Act, 1962 or under the Customs Brokers Licensing Regulations, 2018 and action of the respondent Customs authority suspending the Customs Broker Licence of the petitioner infringing the petitioner’s right to livelihood is penal in nature and is without any authority of law and is without jurisdiction since respondent Customs authority has failed to show any document of formal order of suspension of Customs Broker licence under Regulation 16 of Customs Brokers Licensing Regulations, 2018 - Regulation 18 (3) of the Customs Brokers Licensing Regulations, 2018 and no other provisions of the said Regulations or the Customs Act does confer any power upon the Commissioner of Customs to waive or dispense with the fulfilment of criteria and compliance of formalities under Regulation 16 (1) & (2) of the Customs Brokers Licensing Regulations, 2018, for suspending Customs Broker licence of the petitioner. Petition disposed off.
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