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TMI Blog2016 (11) TMI 339X X X X Extracts X X X X X X X X Extracts X X X X ..... ay and July 2010 and had been referred to the appellant by M/s SJ International, an agent whose licence had been suspended by Commissioner of Customs, Nagpur in June 2010. Licence of appellant was suspended on 14th October 2010. The appellant was also proceeded against vide notice dated 1st June 2012 under section 117 of Customs Act, 1962 for imposition of penalty in connection with the export consignments. The appellant moved this Tribunal for revoking of the suspension order and, on directions of the Tribunal for early completion of hearing of representation by Commissioner of Customs, that authority issued order dated 20th December 2012 for continuation of suspension. 3. In accordance with regulation 22 of the said Regulations, inquiry was ordered on 4th January 2013 to report upon five articles of charge relating to: a) failure to obtain prior authorization of exporter; b) failure to advise the exporter to comply with the provisions of Customs Act, 1962 and did not being the non-compliance to the attention of the proper officer; c) failure to exercise diligence in ascertaining the correctness of information imparted to client with reference to cargo clearance; d) failure t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he contention of the CHA that the department has not followed the procedures prescribed for suspension of their licence, it is on record that the final decision in this matter had to be taken on the basis of outcome of the Inquiry and adjudication proceedings at Ahmedabad Customs. It is also on record that the department had initiated the adjudication proceedings for finally deciding the issue immediately on receipt of the Inquiry report and the OIO of Ahmedabad, Customs. Though, there is a delay in taking the final decision, it is pertinent to mention here that the seriousness of the issue which involves huge economic loss to the Government required an indepth investigation to unearth the economic fraud committed by the fraudsters. Hence, I have to hold that the delay is justified and the CHA cannot take shelter of delay for absolving themselves of the fraud committed by them. In this regard, I rely on the Hon'ble Tribunals decision in the case of S.C. Ghosh & Co. (I) Pvt. Ltd. Vs CC (Admn & Airport) Kolkata xxxxxxxxx 41. The CHA had also contended that the Commissioner (Appeals) had set aside the penalty imposed on them by the ADC, Ahmedabad and he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the decision of the Tribunal in Nikhil Shipping Agency v. Commissioner of Customs (General), Mumbai [2012 (283) ELT 513 (Tri-Mumbai)], which was finalized by reference to Third Member, holding that absolute and final revocation of licence is a consequence of establishing that charges leveled against a customs house agent are correct and that delay is not a mitigating circumstance. 6. Undoubtedly, in re Nikhil Shipping Agency, the Tribunal did emphasize the importance of authorization and that lapse of several years between the impugned incident and commencement of inquiry is not inordinate but a marked difference in the present matter is that penal proceedings initiated against the appellant did not ultimately sustain. There is no record of any examination of cargo having been ordered and in which the appellant was complicit in concealing the true nature of the offending cargo. Though the impugned order points out the quashing of penalty was on technical grounds, we also take note of the fact that the appellant was proceeded against independent of the exporter in a separate proceedings much after the one for confiscation. It appears to have all the hallmarks of an afterthought. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e note that both the cited decisions have delved into the merits of the respective submissions to render a finding. Though, in re Nikhil Shipping Agency, the Tribunal did examine the effect of alleged delays in finalizing the revocation proceedings and observed that such delays would not mitigate the gravity of the offence which was deserving of the penalty imposed, we note that non-adherence with circular no. 9/2010 dated 8th April 2010 of Central Board of Excise & Customs was not an aspect considered while doing so. The purpose, content and consequences of the referred circular cannot admit of any conclusion other than the need for a strict adherence to the time-lines. Customs house agents or customs brokers (as they are now designated) are an integral part of customs operations; they are expected to be a professional class of intermediaries for ensuring smooth flow of goods across borders. Being an important constituent of the logistics industry, a number of persons derive livelihood therefrom. Consequently, any detriment to their earning potential must be determined with utmost care and caution, following all the canons of natural justice and without undue delay. Hence, the tim ..... X X X X Extracts X X X X X X X X Extracts X X X X
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