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TMI Blog2022 (12) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... en framed for our consideration : (i) Whether the CESTAT was right in setting aside the Order-in-Original on the ground that the punishment of revocation of license of CB, is disproportionate even though the charges under Regulation 11(a), 11(d), 11(e) and 11(n) were proved? (ii) Whether the CESTAT was right in setting aside the order-in-Original of the revocation of the CB license and held that it is first breach of CB and punishment of revocation of license of CB is too harsh when in the facts and circumstances of the case, it was second breach by the CB? (iii) Whether the CESTAT was right in law in partly setting aside the Order-in-Original even after coming to the conclusion that the CB has violated the Regulations under CBLR 2013 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hhar, penalty proceedings were also sought to be initiated in that regard besides the confiscation of goods in terms of section 111(m) of CBLR, 2013. 4. By virtue of the show cause notice, the respondent was asked to show cause, as to why the licence, bearing No.11/1779 issued in its name be not revoked and the security deposit be not forfeited and the penalty be not imposed under Regulation 18 read with Regulations 20 and 22 of the CBLR, 2013 on account of its failure to comply with the provisions of the CBLR, 2013. 5. Written submissions were fled to the show cause notice which were considered by the Adjudicating Authority, i.e., the Principal Commissioner of Customs (General) Mumbai Zone-I and finally an order came to be passed on 16th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ms Broker licence of the respondent was highly disproportionate. 7. We have heard the learned counsel for the parties and gone through the orders on record. 8. There is no appeal preferred by the respondent against the order passed by the CESTAT. From the record, we also noticed that the mis-declaration as regards the value of the goods was also made good by the beneficiary importer. The stand of the respondent before the authorities below consistently had been that it had verified the credentials of the IEC holder from the website of the DGFT and that the KYC documents were accordingly scrutinized as per its obligations in terms of the CBLR, 2013. It was also the stand of the respondent that the CBLR, 2013 did not envisage a physical ver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mposition of punishment on the principle of proportionality held : 25. Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court- Martial. But the sentence has to suit the offence and the offender. It should not be A vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court- Martial, if the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. 20. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review." 14. In S.R. Tewari vs. Union of India and anr. (2011) 13 SCC 553, the Apex Court has held : "29. In Union of India & Ors. Vs. R.K.Sharma, this Court explained the observations made in Ranjit Thakur v. Union of India, (1987) 4 SCC 611 observing that if the charge was ridiculous, the punishment was harsh or strikingly disproportionate, it would ..... X X X X Extracts X X X X X X X X Extracts X X X X
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