TaxTMI 
TaxTMI 
2019 (9) TMI 1372
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....On April 23, 2018 a show cause notice was issued by the Commissioner of Customs (Airport and Administration), Customs House, Kolkata (hereinafter referred to as the "Commissioner") wherein, on the basis of the allegations made against, inter alia, a partner of the appellant, Shri Sajal Das, and based on show cause notices issued by the DRI authorities, the appellant was called upon to show cause, as per the provisions of Regulation 20(1) of CBLR, as to why the Custom Broker Licence (in short, "CB licence") issued to it should not be revoked and the security deposit furnished by it should not be ordered to be forfeited under the provision of Regulation 18 of CBLR, since the appellant had allegedly committed "misconduct" which had rendered it unfit to transact business in the Customs Station. 4. Pursuant to the issuance of the said show cause notice, an inquiry was held by the Inquiry Officer appointed by the Commissioner, in which the appellant participated. An Inquiry Report under Regulation 20(5) of CBLR was thereafter submitted by the Inquiry Officer to the Commissioner upholding the allegation in the show cause notice and recommending revocation of the appellant's CB licence an....
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....inst the appellant which, even prima facie, establishes that the conditions laid down for invoking Regulation 18(c) of CBLR against the appellant was satisfied. There is also no allegation in the show cause notice that the obligations of the appellant as a Customs Broker as specified in Regulation 11 was contravened or violated by the appellant in any manner whatsoever. There is also no allegation that the appellant had contravened any other regulations of CBLR, including Regulation 10 thereof. In the absence of such an allegation and consequent finding based thereon, no proceeding can be initiated under the CBLR and/or the Act for revocation of the appellant's licence or for imposition of penalty in terms of Regulation 18 of CBLR, including Regulation 18(c) thereof. As such the impugned order and the Inquiry Report on the basis whereof the same has been passed, as well as the show cause notice, are all without authority of law and unsustainable, the conditions precedent for issuing and/or passing thereof respectively having not been satisfied. (iii) The new case introduced by the Commissioner in the impugned order of the appellant not complying with Regulation 11(d) of CBLR sinc....
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....nt to the said emails received by Md. Nasir Uddin nor is there any allegation that the contents of the said emails were ever disclosed to the appellant. It is undisputed fact that the facility of providing access to its computer by the appellant was being provided at the material point of time to all Customs Brokers operating under a valid licence in the NSCBI Airport, Kolkata and their representatives/employees, as a goodwill gesture in view of the fact that none of the other Customs Brokers had installed a computer in any of their offices in the said Airport. Moreover, Md. Nasir Uddin was an exemployee of the appellant until December 2016 and hence as a courtesy the appellant allowed Md. Nasir Uddin to receive the emails using the appellant's computer. This bona fide act on the part of the appellant in no manner whatsoever implicates the appellant in the alleged acts of omission and commission by those alleged, including, inter alia, Sajal Das nor can on the basis of this alone the appellant be held to have committed a "misconduct" as envisaged under Regulation 18(c) of CBLR. (vii) Further and in any event, it would be ex-facie evident from the show cause notice, Inquiry Report....
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.... Trading on 20.05.2017, the firm related to Sajal Das. The said finding is misplaced, erroneous, perverse and not supported by any material on record. The trade licence issued by the appropriate Government authority which will show that the said firm, Nirmala Bala Trading, belongs to and is owned exclusively by one Chandan Das as its sole proprietor. The appellant or its partner Sajal Das is neither associated with the said firm nor any of them is beneficiary of purported payment made to Nirmala Bala Trading. This material fact has also been ignored inspite of attention being drawn thereto. (xi) By the impugned order passed by the Commissioner the appellant has been irreparably prejudiced for no fault of its. The appellant has 25 employees. The livelihood of the appellant and its said employees and their respective families have been seriously prejudiced by the impugned order, which has been passed on patently erroneous premises of both fact and law. 8. On behalf of the Revenue, Shri A.K.Singh, learned Authorized Representative has reiterated the findings of the Commissioner in the impugned order. 9. Regulation 18(c) empowers the Principal Commissioner or the Commissioner of Cu....
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.... The obligation of a Customs Broker under Regulation 11(d) is to "advise his client to comply with the provisions of the Act and in case of non-compliance" bring the matter to the notice of the Deputy Commissioner of Customs or the Assistant Commissioner of Customs, as the case may be. We find that the impugned order itself acknowledges that the appellant was not a Customs Broker on record. Hence it is established that none of the importers/persons concerned were clients of the appellant. There was thus no requirement on the part of the appellant under Regulation 11(d) to give any advice to a non-existent client to comply with the provisions of the Act or in noncompliance thereof bring the matter to the Deputy Commissioner or Assistant Commissioner of Customs. Thus Regulation 11(d), as rightly contended by the appellant, is inapplicable. Therefore, the question of the appellant not complying with its obligation under Regulation 11(d) of CBLR did not arise. The contrary finding of the Commissioner is thus erroneous and untenable. 13. Moreover we find that this allegation of the appellant not complying with Regulation 11(d) is neither in the show cause notice nor in the Inquiry Repo....