TMI Blog2022 (7) TMI 1198X X X X Extracts X X X X X X X X Extracts X X X X ..... arly shows that he has breached the said provision. It is also noted the legal principle of Preponderance of Probabilities which is required to be applied and not proof beyond reasonable doubt. Bearing this in mind, when we examine the order passed by the licensing authority dated 21.09.2017 by which the license was revoked, the statement of Shri Subhasish Bhattachariya, Director of the respondent company recorded under Section 108 of the Act on 03.09.2016, 05.09.2016 and 11.11.2016 were taken note of. There is a clear admission that there was a mis-declaration in the weight of the imported consignment, and that the weigh bridge operator of CONCOR-CFS Kolkata used to ask staff of the respondent about the declared weight in the Bill of Lading or IGM and used to issue weighment slip matching with the declared weight. Further he had stated that the customs authorities never checked the weight of the packing materials of the bills of the old and used clothing but relied on the declaration in the imported documents. Further he had stated that after examination by the customs, the weighment slips were destroyed by the respondent company. Shri Marinmoy Das, another Director of the res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... J.) 1. This appeal filed by the revenue is directed against the order dated 26.11.2019 passed by the Customs, Excise and Service Tax Appellate Tribunal, East Regional Bench, Kolkata (tribunal) in Appeal No. 77086/2017. The revenue has raised the following substantial questions of law for consideration:- (b) Whether the respondent is not liable as per Regulation 17(9) of the Customs Broker Licensing Regulation 2013 which stipulates that a customs broker shall exercise such supervision as may be necessary to ensure the proper conduct of his employees in the transaction of business and he shall be held responsible for all acts or omissions of his employees during their employment. (c) Whether the payment of differential amount duty of Rs. 65.40 Lakhs by the respondent to the appellant does not prove admission of liability and involvement of the respondent functioning as importer itself. (e) Whether statements made by the director of the respondent admitting the offence and the involvement thereto binds the respondent company? 2. We have heard Ms. Manasi Mukherjee, learned standing counsel for the appellant and Mr. Arnab Chakraborty, learned advocate, Bar-At-L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 8 of the CBLR, the respondent has executed a bond and furnished security before the grant of licence binding himself to due observance of the provisions of CBLR, 2013. The obligations on the Customs Broker/respondent have been clearly and elaborately enumerated in Regulation 11. The respondent cannot wash his hands by stating that notices issued by the department to the importer could not be served and in order to mitigate the liability, the respondent had paid Rs. 65,00,000/-. The appellant on examining the conduct of the respondent held him to be the de facto importer. In terms of the CBLR 2013, the KYC norms have to be fulfilled before the Customs Broker accepts to handle the cargo of any one of the parties. If the KYC norms had been complied with, the respondent cannot be heard to say that the whereabouts of the importer are not known. Nothing prevented the respondent to bring the importer to the scene by the making him appear before the authorities to give a statement. The fact that the respondent did not do so but on the contrary paid the sum of Rs. 65,00,000/- towards the part of the duty liability clearly shows that the respondent was the de facto importer and the appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m House Agent, he should not be a cause for violation of those provisions. A CHA cannot be permitted to misuse his position as a CHA by taking advantage of his access to the Department. The grant of licence to a person to act as Custom House Agent is to some extent to assist the Department with the various procedures such as scrutinizing the various documents to be presented in the course of transaction of business for entry and exit conveyance or the import or export of the goods. In such circumstances, great confidence is reposed in a Custom House Agent. Any misuse of such position by the Custom House Agent will have far reading consequences in the transaction of business by the Custom House officials. 5. The conduct of the respondent does not meet the standards as pointed out by the Hon ble Supreme Court. In terms of clause (d) of Regulation 11, the respondent was bound to advise his client to comply with the provisions of the Act and in case of non-compliance, the respondent should bring the matter to the notice of the Customs Authorities. In terms of clause (n) of Regulation 11, the respondent has to verify the antecedents, the correctness of the importer, exporter code no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator. This is the Wednesbury test. (2) The Court would not interfere with the administrator s decision unless it was illegal or suffered from procedural impropriety or was irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles. (3) (a) As per Bugdaycay, Brind and Smith, as long as the Convention is not incorporated into English Law, the English Courts merely exercise a secondary judgment to find out if the decision maker could have, on the material before him arrived at the primary judgment in the matter he had done. (b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tute its own conclusions on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal it would appropriately would the relief, either by directing the disciplinary authority/appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare case, impose appropriate punishment with cogent reasons in support thereof Similar view was taken in Indian Oil Corporation Versus Ashok Kumar Arora [1997 (3) SCC 72] that the Court will not intervene unless the punishment is wholly disproportionate. 8. In Coimbatore District Central Cooperative Bank while considering the doctrine of proportionality it was held as follows: Proportionality is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of the petitioner being the case of contravention of said regulations and misuse of licence as CHA, the respondent Authorities have rightly revoked the licence of the petitioner. The said decision having been arrived at by the respondents, after taking into consideration all relevant material and the said Regulation, and after following the due process of law, it could not be said that the said decision was illegal, unreasonable, perverse or irrational. Under the circumstances, it could also be not said that the punishment of revocation of licence was a harsh punishment or the punishment dehors the doctrine of proportionality. The petitioner having failed to point out any perversity or unreasonableness on the part of respondent authorities warranting judicial intervention, this Court does not find any merits in the present petition. 11. Mr. Chakraborty elaborately referred to the order passed by the tribunal more particularly paragraphs 7 to 12 wherein the learned tribunal has referred to the submissions made on behalf of the respondent. The learned advocate has referred to paragraph 17 of the impugned order to demonstrate that the tribunal had taken note of the contradicto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ighment slips were found from their office by the DRI as they were destroyed as per the instructions of the importer because the weight of the consignment were not as per declaration. Further he had stated that Shri Subhasish Bhattachariya had taken care of the entire operations and three G card holders of the respondent had physically cleared the consignment through the customs. Further the difference in declared weight and actual weight was admitted to have revealed huge evasion of customs duty. Shri Ratan Baidya, weigh bridge operator in his statement recorded under Section 108 on 05.09.2016 and 07.09.2016 admitted that for two years he worked as weigh bridge operator and during March 2016, two representatives of the respondent company approached him to manipulate the weight of containers by entering cargo weight as given by them manually during weighments and promised to pay Rs. 100 per container for such manipulation and he being poor agreed to the proposal. Further he had stated that he had manipulated weighments of more than 100 containers handled by the respondent. The manipulated weighment slips were not only handed over to the representatives of the respondent and the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce of probabilities was explained:- 720. In Miller v. Minister of Pensions, Lord Denning, J. (as the Master of Rolls then was) defined the doctrine of the balance or preponderance of probabilities in the following terms: (All ER p. 373 H) (1).....It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, of course it is possible, but not in the least probable the case is proved beyond reasonable doubt, but nothing short of that will suffice. (emphasis supplied) 721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, L.J. in Bater v. Bater 1951 P 35 (CA), where he formulated the principle thus: )p.37) ....So also in civil cases, the case must be proved by a preponderance of probability, but there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... down as above, we have no hesitation to hold that there exists more than sufficient probabilities to pin down the respondent on the charge of violation of CBLR, 2013. 14. Mr. Chakraborty placed reliance on the decision of the Hon ble Supreme Court in H.B. Cargo Services Versus Commissioner of Customs 2021 (376) E.L.T. 241 (SC) it was submitted that in the said case the period of license expired and when the challenge to the revocation travelled up to the Hon ble Supreme Court, taking note of the fact that the said appellant had submitted an application for grant of fresh CHA License, the application was directed to be considered by the competent authority on its own merits uninfluenced by the revocation order concerning the previous CHA licence. 15. It is pointed out that licence granted to the respondent is to expire on 22.07.2022 and in the event this Court does not agree with his submissions, the relief as granted by the Hon ble Supreme Court can be considered in the case of the respondent. 16. The decision in HB Cargo Services is in the nature of a concession granted by the department before the Hon ble Supreme Court which led to issuance of such direction. Ms. Man ..... X X X X Extracts X X X X X X X X Extracts X X X X
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