TMI Blog2016 (4) TMI 922X X X X Extracts X X X X X X X X Extracts X X X X ..... of the principles of natural justice. Further, since the order impugned is founded on the basis of a previous order holding the petitioner guilty of abetting his client in an illegal import transaction, the order of suspension cannot be seen to be completely without basis that would shock the conscience of the court. Alternate remedy of appeal - Held that:- since the challenge in the petition is not founded on any of the grounds that may excite the court to disregard the alternative remedy available to the petitioner, the merits of the petitioner’s challenge to the impugned order cannot be gone into. It must also be emphasised that the alternative remedy that was available to the petitioner was the post-decisional hearing as an appeal from an order of suspension ought, ordinarily, not to be entertained since such order does not attain any degree of conclusivity before a subsequent order is passed after the post-decisional hearing. The present essay of the petitioner is misconceived and ill advised. In any event, the petitioner ought to have participated at the post-decisional hearing since no order was passed on this petition preventing the petitioner from so doing or keepin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods it was found that branded automotive parts of, inter alia, BMW, Mercedes and Toyota were included in the consignment though no brand or model of the automotive parts had been declared by the importer. Further, goods in excess of the declared quantity were discovered in the consignment. The order recorded that since the value and description of the imported goods were misdeclared and excess goods were also discovered in the consignment, such imported goods were seized under Section 110 of the said Act on February 12, 2015 on the reasonable belief that such goods were liable for confiscation under Section 111 of the Act. 4. It appears from the aforesaid order of February 26, 2016 that the importer was summoned for appearance on several occasions with appropriate documents, but all the documents were not furnished. The statement of a representative of the petitioner was recorded on February 19, 2015 under Section 108 of the Act wherein he agreed with the contents of the seizure list and that the consignment had been examined in his presence. The same representative of the petitioner appeared again on June 15, 2015 before the concerned Additional Commissioner (Preventive) pursua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... usiness transaction by the Customs Broker, would be prejudicial to the interest of Revenue and immediate action under Regulation 19(1) of CBLR 2013 is warranted to prevent further misuse of the Customs Broker licence. ORDER (i) In view of the findings above I hereby order the suspension of CB Licence No. R-16, PAN No.ACWPG2166M of M/s. Ranabir Enterprise with immediate effect and until further orders under Rule 19(1) of CBLR, 2013. (ii) As per Regulation 19(2) of CBLR, 2013 opportunity is given to M/s. Ranabir Enterprise or to their authorised representative to appear before the undersigned for a post-decisional hearing on 22-04-2016 at 11.00 hrs. 6. Though the impugned order of April 5, 2016 afforded the petitioner a postdecisional hearing on April 22, 2016, the petitioner evinced an intention to disregard the same upon instituting the present proceedings on April 12, 2016. 7. The petitioner insinuates that the licensing authority has merely paraphrased the salient parts of the order-in-original and has passed a perfunctory order of suspension without any application of mind. The petitioner asserts that the tenor of the impugned order of suspension betr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ant Commissioner of Customs, as the case may be, to inquire into the grounds which are not admitted by the Customs Broker. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs Broker, for the purpose of ascertaining the correct position. (4) The Customs Broker shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall prepare a report of the inquiry and after recording his findings thereon submit the report wit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s possible at such post-decisional hearing that the broker may allay the misgivings of the licensing authority, the assertion in the order of suspension that an inquiry against the petitioner was in contemplation demonstrates that the post-decisional hearing would be an empty formality and the matter would progress seamlessly to the process of revocation under Regulation 20 of the said Regulations. 9. The petitioner claims on the basis of the circular of April 8, 2010 that the Central Board of Excise and Customs has prescribed a time-limit in cases warranting immediate suspension of a licence and such time-limit is within thirty days of the detection of an offence . The petitioner also relies on the last limb of paragraph 7.2 of the circular: 7.2. The Licensing authority shall take necessary immediate suspension action within fifteen days of the receipt of the report of the investigating authority. A post-decisional hearing shall be granted to the party within fifteen days from the date of his suspension. The Commissioner of Customs concerned shall issue an Adjudication Order, where it is possible to do so, within fifteen days from the date of personal hearing so granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... relied on a Division Bench judgment of this court reported at 1998 (104) ELT 11 (N. C. Singha v. Union of India). The judgment was rendered in an appeal arising out of the refusal by a single bench to pass an interim order in a petition challenging the suspension of a licence under the Customs House Agents Licensing Regulations, 1984. Regulation 21 (2) of the Regulations of 1984 appears to have been in pari materia with Regulation 19(1) of the Regulations of 2013 relevant for the present purpose. At paragraph 5 of the report, the Division Bench observed that the power under Regulation 21(2) was resorted to apparently without spelling out in the impugned order as to whether any immediate action was necessary On such appreciation, even though the appeal arose form an interim order, the writ petition was effectively allowed by quashing and setting aside the order of suspension. 14. The facts in the reported judgment are clearly inapplicable here. The Division Bench in that case read the order of suspension not to indicate any reasons why it was immediately necessary to suspend the licence. In the present case, the impugned of order of suspension of April 5, 2016 refers to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said Regulations and it is possible that an inquiry may be under any provision of the parent statute. It is possible to accept such argument, but it is not relevant in the present context as no inquiry was pending against the petitioner as at the date of the order of suspension. In such order of suspension asserting that an inquiry was contemplated against the petitioner, the only inquiry that it alluded to was the one under Regulation 20(2) of the said Regulations. 18. However, there is no merit in the petitioner s assertion that since the relevant Principal Commissioner contemplated that he may direct an inquiry under Regulation 20(2) of the said Regulations, the post-decisional hearing on the order of suspension under Regulation 19(2) of the said Regulations was to be an idle formality. Any authority intending to take any penal action against a perceived delinquent must believe that if the allegations, in respect whereof a reply of the perceived delinquent is sought, were to be proved, the delinquent would be guilty of misconduct. That is the very basis for taking the first step in any proceedings having penal consequences. But that would not imply that the authority sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ority. In this case, the order of suspension has been passed within a short time of licensing authority being made aware of the proven misconduct on the part of the petitioner as established by the order of February 26, 2016. 22. Since an order of suspension of a Customs broker licence may be passed under the said Regulations without affording the broker any previous opportunity to explain his perceived misconduct, the invocation of this extraordinary jurisdiction cannot be seen to be on the ground of the breach of the principles of natural justice. Further, since the order impugned is founded on the basis of a previous order holding the petitioner guilty of abetting his client in an illegal import transaction, the order of suspension cannot be seen to be completely without basis that would shock the conscience of the court. 23. Since the challenge in the petition is not founded on any of the grounds that may excite the court to disregard the alternative remedy available to the petitioner, the merits of the petitioner s challenge to the impugned order cannot be gone into. It must also be emphasised that the alternative remedy that was available to the petitioner was the post- ..... X X X X Extracts X X X X X X X X Extracts X X X X
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