TMI Blog2018 (2) TMI 1621X X X X Extracts X X X X X X X X Extracts X X X X ..... ency of suspension and cancellation of licence and not under any other contingencies based on the reading of Section 146 (2)(g) of the Act is rather misconceived and does not deserve to be accepted. The power to frame Rules given to the Board in the various fields enumerated in Clauses (a) to (g) of sub-Section (2) of Section 146 of the Act are not restrictive in any manner, but they provide for different fields for which Regulations can provide for. Even the orders passed under Regulation 23 of ‘Regulations of 2013’ are appealable under Section 129- A of the Act read with Regulation 21 of the 2013 Regulations. Departmental Authorities including the Appellate Authorities and also the CESTAT under Section 129-A of the Act are better equipped and manned with experts in the field to measure the pros and cons of the cases arising under the Customs Act, 1962 and therefore they are better disposed of to deal with the situations arising under the said ‘Regulations of 2013’ namely “prohibitions” under Regulation 23, suspension of licence under Regulation 19, cancellation of licence under Regulation 18 and imposition of penalty under Regulation 20. As far as exercise of jurisdicti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods under CTH 25202090 attracting the rate of duty at 5% as against the appropriate classification under CTH 68090000 attracting duty at the rate of 10% cannot be said to be a mis-declaration on the part of the petitioner, the Customs Broker and such declaration is made by the importer and therefore no offence was committed by the present petitioner to attract the consequence of prohibition under Regulation 23 and the impugned order, therefore, deserves to be quashed. 4. He has further submitted that Section 122-A of the Act contained in Chapter XIV dealing with the Confiscation of Goods and Conveyances and Imposition of Penalties , comprising of Sections 111 to 127 of the Customs Act, 1962 provides for adjudication procedure and inter alia Section 122-A provides that the Adjudicating Authority shall, in any proceedings under this Chapter or any other provisions of this Act, give an opportunity of being heard to a party in a proceedings, if the party so desires. Therefore in the absence of any prior notice and opportunity of hearing, the impugned order under Regulation 23 deserves to be quashed being in breach with the principles of natural justice. 5. On the question o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e or for imposing a penalty and which inter alia envisages issuance of a notice in writing to the Customs Broker within a period of 90 days from the date of receipt of the Offence Report. 9. He has relied upon the judgment of the Division Bench of Delhi High Court in the case of Overseas Air Cargo Services Vs. Commissioner of Customs (General), New Delhi 2016 (340) E.L.T. 119 (Del.) to the effect that the said period of 90 days under Regulation 20 is of mandatory nature and not directory. 10. The learned counsel for the petitioner therefore, submitted that the impugned order deserves to be quashed by this Court in the present writ petition. 11. Per contra, Mr. Jeevan J. Neeralgi, learned counsel appearing for the Respondent - Customs Department has submitted before the Court that as far as the question of alternative remedy by way of an appeal against the impugned order passed under Regulation 23 is concerned, this Court has already taken a view in the case of M/s. Capricorn Logistics Pvt. Ltd. Vs. Commissioner of Customs (W.P.No.52739/2017 disposed of on 21/11/2017) holding that the remedy by way of an appeal before CESTAT under Section 129 of the Act is available against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a party in a proceeding, if the party so desires. (2) The adjudicating authority may, if sufficient cause is shown at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing: PROVIDED that no such adjournment shall be granted more than three times to a party during the proceeding. 129-A. Appeals to the Appellate Tribunal: (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- (a) a decision or order passed by the [Principal Commissioner of Customs or Commissioner of Customs] as an adjudicating authority. (b) an order passed by the [Commissioner (Appeals)] under section 128A; (c) an order passed by the Board or the [Appellate Commissioner of Customs] under section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the [Principal Commissioner of Customs or Commissioner of Customs], either before or after the appointed day under section 130, as it stood immediately before that day: 146. Licence for Customs Brokers: (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 962 (52 of 1962) or any other law for the time being in force. Regulation 19: Suspension of licence. - (1) Notwithstanding anything contained in regulation 18, the Commissioner of Customs may, in appropriate cases where immediate action is necessary, suspend the licence of a Customs Broker where an enquiry against such agent is pending or contemplated. (2) Where a licence is suspended under sub-regulation (1), the Commissioner of Customs shall, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs Broker whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs Broker: Provided that in case the Commissioner of Customs passes an order for continuing the suspension, the further procedure thereafter shall be as provided in regulation 20. Regulation 20: Procedure for revoking licence or imposing penalty. - (1) The Commissioner of Customs shall issue a notice in writing to the Customs Broker within a period of ninety days from the date of receipt of an offence report, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs Broker, pass such orders as he deems fit either revoking the suspension of the license or revoking the licence of the Customs Broker or imposing penalty not exceeding the amount mentioned in regulation 22 within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-regulation (5): Provided that no order for revoking the license shall be passed unless an opportunity is given to the Customs Broker to be heard in person by the Commissioner of Customs. Regulation 21: Appeal by Customs Broker. A Customs Broker, who is aggrieved by any order passed by the Commissioner of Customs under these regulations, may prefer an appeal under section 129A of the Act to the Customs. Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of section 129 of the Act. 22. Penalty. A Customs Broker, who contravenes any provisions of these regulations or who fails to comply with any provision of these regulations shall be liable to a penalty w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty. Regulation 22 provides for the Penalty for contravention of any provisions of these Regulations extending up to ₹ 50,000/-. Regulation 23, which has been invoked in the present case is a non- obstante provision in the said Regulations, where by the competent authority namely, the Prl.Commissioner of Customs or Commissioner of Customs may prohibit any Customs Broker from working in any one or more sections of the Customs Station, if he is satisfied that such Customs Broker has not fulfilled his obligations under Regulations 11 or 17 in relation to work in that section or sections. 9. Thus, to secure the immediate result and prohibit any continuation of illegal activities, such authority has been vested with a power to take immediate action under Regulation 23 as aforesaid. The operative portion of the impugned order also shows that the said order is passed with immediate effect and until further orders. The said order is dated 13.11.2017. 10. The petitioner, in these circumstances, not only has an opportunity to show-cause and establish its innocence and compliance with the Regulations before the concerned authority itself even now, but has equal, adequate and ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is already set up to exercise the appellate and revisional jurisdiction under the relevant laws. 13. The protection, relief and quashing of the impugned orders in such cases on such vaguely worded grounds on a misplaced sympathy can cause more damage to the Society than even protecting the semblance of legal rights which the petitioners may have. 14. This Court would not like to comment upon the facts of the present case, as the matter appears to be still pending under investigation and the appellate order, the petitioner may have his own opportunity to lead his evidence in the matter at this stage, but prima-facie reading of the order, shocks the conscience of this Court. The manner in which the shell companies or the paper companies are created to show the export of goods on these fake documents, which leads up to the claim of the duty drawbacks, which empties the Treasury of the Government, by draining out the public money by the mischievous elements, does not require any sympathy of the Court. The immediate ban in such cases on the Customs Brokers, who are the real identified persons before the Customs Authorities and whose activities only leads to such tax evasion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on does not have any such restrictive terms incorporated in the said provision. It says that a decision or order passed by the Principal Commissioner of Customs as an adjudicating authority shall be appealable. There is no doubt that the order passed under Regulation 23 by the Principal Commissioner of Customs is also an order passed by him as an adjudicating authority . What is adjudicated and what is imposed in the order under the Regulations does not de-limit the scope of the appellate provisions but it is important only for deciding the consequence flowing from such orders. 20. The contention of the learned counsel for the petitioner assessee that the adjudication procedure provided in Section 122-A of the Act namely of giving an opportunity of hearing if the party so desires is also without any merit as the said provisions of Section 122-A of the Act contained in Chapter XIV dealing with the Confiscation of Goods and Imposition of Penalties does not deal with a contingency like prohibition under Regulation 23 quoted above. Therefore, the procedure provided in Section 122-A of the Act in Chapter XIV cannot be imported and read into the Regulation 23 as contended. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is why the procedure of giving of a prior notice and opportunity of hearing appears to have not been deliberately provided for in the said Regulation 23. Nonetheless, the remedial measure to an aggrieved person is provided for in the Scheme of the Act and Regulation 21 itself. 22. Therefore, this Court is of the clear opinion that even the orders passed under Regulation 23 of Regulations of 2013 are appealable under Section 129- A of the Act read with Regulation 21 of the 2013 Regulations. 23. It goes without saying that the Departmental Authorities including the Appellate Authorities and also the CESTAT under Section 129-A of the Act are better equipped and manned with experts in the field to measure the pros and cons of the cases arising under the Customs Act, 1962 and therefore they are better disposed of to deal with the situations arising under the said Regulations of 2013 namely prohibitions under Regulation 23, suspension of licence under Regulation 19, cancellation of licence under Regulation 18 and imposition of penalty under Regulation 20. 24. As far as exercise of jurisdiction under Article 226 of the Constitution is concerned, it is well settled that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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