TMI Blog2017 (12) TMI 624X X X X Extracts X X X X X X X X Extracts X X X X ..... , though alleged to be deliberate, cannot be construed as a serious matter. The respondent stated that the petitioner failed in his obligations contemplated under Regulation 11 by adding the word computer , to the 'item description' without seeking proper explanation from the importer, thereby violating Section 46(4) of the Customs Act. In such circumstances, it cannot be stated that the respondent did not properly exercise its discretion, while suspending the petitioner's licence under Regulation 19(1), nor it can be stated that the interpretation given by the respondent was either perverse or arbitrary not to bring the petitioner's case within the ambit of appropriate case in Regulation 19(1) . Considering the conduct of the petitioner and the facts, the first respondent has exercised his powers and found the petitioner's case to be an appropriate case for immediate suspension. After the petitioner was afforded an opportunity, he was given a hearing and the order of suspension has been directed to be continued and the reasons assigned in the impugned order are just and germane to the allegations made against the petitioner - Petition dismissed - decided against petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he respondent adjudicated the matter and passed the impugned order ordering for continuation of the suspension with the direction that proceedings under Regulation 20 of the CBLR will follow. The petitioner while admitting that as against the impugned order, they have an effective remedy of an appeal before the Tribunal, challenges the same as the order has been passed by abusing and misusing the power conferred on the respondent and alternate remedy would not be efficacious and effective. 4. Mr.C.Natarajan, learned Senior counsel appearing for Mr.Hari Radhakrishnan, learned counsel for the petitioner referred to the Regulation (CBLR) and has drawn the attention of this Court to Regulation No.18. It is submitted that the said regulation provides for revocation of licence or imposition of penalty. That the Commissioner of Customs may subject to the provisions of the Regulation 20, revoke the licence of the customs broker and order for forteiture of part or whole of security, or impose penalty not exceeding fifty thousand rupees on a customs broker on any of the grounds mentioned in clauses (a) to (f) being made out. It is submitted that clauses (c) to (f) of Regulation 18 would r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evoked, so as to enable the petitioner to carry on the business operation, which has virtually come to a stand still. 6.Mr.T.Pramod Kumar Chopda, learned Senior Standing counsel appearing for the respondent submitted that the petitioner having already received the show cause notice, dated 03.11.2017, under Regulation 20 of the CBLR should submit their reply to the notice and participate in the proceedings before the respondent and a time frame could be fixed within which such proceedings can be concluded by the respondent. It is submitted that on account of the factual matrix, which has been brought out in a clear manner in the impugned order, suspension of the petitioner's customs broker licence is warranted and the respondent has given sufficient reasons in the order dated 22.09.2017, as to why order of suspension was required to be passed under Section 19(1) of the CBLR and has given separate and adequate reasons in the impugned order dated 12.10.2017, as to why the order of suspension should continue. It is submitted that this Court will not go into the factual position and examined the sufficiency of the reasons for placing the petitioner's licence under suspension ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tiplicity of agencies namely carriers, custodians like BPT as well as the Customs. The importer would find it impossible to clear his goods through its agencies without wasting valuable energy and time. The CHA is supposed to safeguard the interests of both the importers and the customs. A lot of trust is kept in CHA by the importers/exporters as well as by the government agencies. To ensure appropriate discharge of such trust, the relevant regulations are framed. Regulation 14 of the CHA Licensing Regulations lists out obligations of the CHA. Any contravention of such obligations even without intent would be sufficient to invite upon the CHA, the punishment listed in the Regulations. This being the level of trust and confidence imposed on a customs broker, who has been issued a licence under the relevant Regulation, it has to be seen as to whether the impugned order of suspension under Regulation 19(2) of the Act, is sustainable or not. Regulation 19 of the CBLR, deals with suspension of licence. Regulation 19(1) states that notwithstanding anything contained in regulation 18, the Commissioner of Customs may, in appropriate cases where immediate action is necessary, suspend the li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate that the violations of clauses (a) (b) can invite only a penalty and violations of clauses (c) to (f) will definitely result in revocation. The manner in which Regulation is interpreted is incorrect, as it is the adjudicating authority, who has to take a decision in the matter as to what is the nature of punishment to be imposed on the CHA. Therefore, this Court does not agree with the submissions made on behalf of the petitioner that assuming it is established that there is violation of clauses (a) (b) of Regulation 18, the maximum that can happen to the petitioner is imposition of penalty and therefore, suspension should be revoked. If such interpretation given by the petitioner is to be accepted then Regulation 18 has to be reworded to state that violation of clauses (a) (b) would be construed as a minor penalty warranting a minor punishment of fine and violation of clauses (c) to (f) would be a major penalty warranting revocation, as a major punishment. Such interpretation is impermissible and there is no room provided under the Regulation to accept such a stand. 10. There can be no dispute over the settled legal position that there is no res judicata in matters pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of the Deputy Commissioner of Customs or the Assistant Commissioner of Customs. Further, he is required to exercise due diligence to ascertain the correctness of any information, which he imparts to a client with reference to any work related to clearance of cargo or backage. Thus, there was a duty on the part of the petitioner to advice his client that they would not be justified in adopting a different classification of the goods having failed in the earlier attempt resulting in an order which has attained finality. The explanation which was offered by the petitioner stating that they had adopted it, as it was an industry terminology and it was based on the catalogue /technical specification sheet. The officer, who investigated the matter, has recorded that the statement of the importer that they had added the word computer based on the catalogue/technical specification sheet was found to be factually incorrect, as the catalogue/technical specification sheet produced by them along with the import documents through the petitioner before the customs do not portray the LED monitor as computer monitor. Thus, the respondent stated that the petitioner failed in his obligations contem ..... X X X X Extracts X X X X X X X X Extracts X X X X
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