TMI Blog2019 (11) TMI 621X X X X Extracts X X X X X X X X Extracts X X X X ..... documents which were properly verified by the appellant. Further in view of the various decisions relied upon by the appellant, it is not necessary that the Customs Broker should personally verify the premises of the importer. Once the Customs Broker has been approached by the employee of the importer and he has verified the necessary documents, then there cannot be any allegation of violations against the CHA - Further the impugned order says that the appellant has not advised the importer without specifying as to what advice was required to be given by the appellant and the same was not given by the appellant to the importer. The impugned order is not sustainable in law - Appeal allowed - decided in favor of appellant. - C/Stay/20456/2019 in C/20794/2019-DB - Final Order No. 20821/2019 - Dated:- 25-9-2019 - HON'BLE MR. S.S GARG, JUDICIAL MEMBER AND HON'BLE MR. P. ANJANI KUMAR, TECHNICAL MEMBER Shri G.B. Eswarappa, Advocate For the Appellant Shri Rama Holla, Superintendent (AR) For the Respondent ORDER Per : S.S. GARG The present appeal is directed against the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the effect that: i. The allegation of violation of Regulation 10(a) of the CBLR, 2018, of not obtaining authorization from the importer is sustainable. ii. The allegation of violation of Regulation 10(d) of the CBLR, 2018 of not advising his client is sustainable. iii. The allegation of violation of Regulation 10(e) of the CBLR of not complying with due diligence is not sustainable; iv. The allegation of violation of Regulation 10(n) of the CBLR, of not verifying the IEC number, and functioning of his client at the declared address by using reliable, independent, authentic documents, data/information is not sustainable. The said Inquiry Report was communicated to the appellant who filed his defence reply dt. 30/07/2019. Thereafter the Commissioner of Customs passed the impugned order vide which the Customs Broker Licence was revoked and security was forfeited and penalty of ₹ 50,000/- was imposed. Aggrieved by the said order, appellant filed the present appeal. 3. Heard both sides and perused the records. 4. Learned counsel for the appellant submitted that the imp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 302) ELT 161 (Del.)]. ii. Commissioner Vs. Ashiana Cargo Services [2015(320) ELT A175 (SC)] iii. Marks Logistics Vs. CC, cochin [2016(344) ELT 519 (Tri. Bang.)] iv. Kunal Travels (Cargo) Vs. CC(I G), IGI Airport, New Delhi [2017(354) ELT 447 (Del.)] v. Yogesh Kumar Vs. CC, New Delhi (Import General) [2016(344) ELT 586 (Tri. Del.)] vi. Transport Logistics Vs. CESTAT, Chennai [2016(338) ELT 380 (Mad.)] vii. JM Baxi Co. Vs. CC, Kandla [2016(337) ELT 268 (Tri. Ahmd.)] viii. Baraskar Brothers Vs. CC(General), Mumbai [2013(294) ELT 415 (Tri. Mumbai)] ix. Setwin Shipping Agency Vs. CC(General), Mumbai [2010(250) ELT 141 (Tri. Mumbai)] x. HB Cargo Services Vs. CC, Hyderabad [2010(261) ELT 540 (Tri. Bang.)] xi. Nanda International Vs. CC, Chennai [2004(176) ELT 524 (Tri. Chennai)] xii. HIM Logistics Pvt. Ltd. Vs. CC, New Delhi [2016(338) ELT 725 (Tri. Del.)] xiii. CC Vs. HIM Logistics Pvt. Ltd. [2017(348) ELT 625 (Del.)] 5. On the other hand, the learned AR defended the impugned orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication of the importer s premises could have avoided the filing of the bill of entry by the appellant. Even in such a situation, the violation in respect of the cargo viz. the non-declaration of the RSP on the auto parts, a debatable point of interpretation, cannot be held against the appellant to result in the revocation of their licence. Here, it is to be noted that the bill of entry was filed after the detention of the goods for inquiry by the DRI Officers and request for physical verification of the cargo before assessment has been made in the form of first check bill of entry. We find that the impugned order passed on dis-agreement with the inquiry report has not brought out clear sustainable ground for such extreme action of revocation of licence. Violation of CBLR, 2013 has not been brought out as all the points have been elaborately discussed in the inquiry report and no sustainable ground for differing with the same could be made out. 10.Considering the above analysis and discussion, we find the present impugned order could not be sustained and accordingly, we set aside the same. 6.2. This decision of the Tribunal has been upheld by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly. A penalty must be imposed. At the same time, the penalty must - as in any ordered system - be proportional to the violation. Just as the law abhors impunity for infractions, it cautions against a disproportionate penalty. Neither extreme is to be encouraged. In this case, in view of the absence of any mens rea, the violation concerns the provision of G cards to two individuals and that alone. A penalty of revocation of license for this contravention of the CHA Regulations unjustly restricts the appellant s ability to engage in the business of the CHA for his entire lifetime. As importantly, it skews the proportionality doctrine, substantially lowering the bar for revocation as a permissible penalty, especially given the dire civil consequences that follow. On the other hand, the minority Opinion of the CESTAT, delivered by the Judicial Member, correctly appreciates the balance of relevant factors, i.e. knowledge/mens rea, gravity of the infraction, the stringency of the penalty of revocation, the fact that the appellant has already been unable to work his license for a period of 6 years (now 8 years), and accordingly sets aside the order of the Commissioner dated 24-1-2005 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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