TMI Blog2022 (12) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... and since the respondent is not in appeal against the order of the CESTAT, the only issue that is required to be considered is whether the order passed by CESTAT to the extent it set aside the order of the Adjudicating Authority for revocation of the Customs Broker licence of the respondent on the grounds of proportionality is sustainable or not? - The doctrine of proportionality is a well recognized concept of judicial review which Courts invoke to test the punishments imposed which are disproportionate to the alleged misconduct. Considering the fact that the respondent had, in fact, discharged a part of its obligation under the CBLR, 2013, although not in its entirety, we feel that the order with regard to revocation of the Customs Broker Licence would have been excessive in the facts and circumstances of the case and the issue has been rightly dealt with by the CESTAT. Appeal dismissed. - CUSTOMS APPEAL NO. 6 OF 2022 - - - Dated:- 23-11-2022 - DHIRAJ SINGH THAKUR AND VALMIKI SA MENEZES, JJ. Mr. Karan Adik with Mr. Dhananjay B. Deshmukh, Advocate for appellant. Mr. S.K. Mathur, Advocate for respondent. PER DHIRAJ SINGH THAKUR J. (OPEN COURT) : 1. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learing the said imports. On account of mis-declaration of the value of the imported goods by M/s. Forus Enterprises and the actual importer Shri Anil Kumar Vachhar, 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 September 2020, whereby besides revocation of the Customs Broker Licence of the respondent, penalty of Rs.50,000/- was imposed with forfeiture of the amount of Rs.5,00,000/- which was the security deposit with the respondent. The Adjudicating Authority held the respondent guilty of ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... satisfied its obligation towards verification of the KYC norms of M/s. Forus Enterprises, whereas the stand of the revenue is that the respondent had failed to discharge its obligations under the CBLR, 2013 to verify the antecedents of the actual importer, i.e., Shri Anil Kumar Vachhar. 9. In the present case, since the authorities below have all held that there was failure on the part of the respondent to follow the KYC norms and since the respondent is not in appeal against the order of the CESTAT, the only issue that is required to be considered is whether the order passed by CESTAT to the extent it set aside the order of the Adjudicating Authority for revocation of the Customs Broker licence of the respondent on the grounds of proportionality is sustainable or not? 10. The doctrine of proportionality is a well recognized concept of judicial review which Courts invoke to test the punishments imposed which are disproportionate to the alleged misconduct. 11. In Ranjit Thakur Vs. Union of India Ors. (1987) 4 SCC 611, the Apex Court, while testing the imposition of punishment on the principle of proportionality held : 25. Judicial review generally speaking, is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised 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 degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. 21. In a case like the present one where the misconduct of the delinquent was unauthorized absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his absence by stating that he did not have any intention 10 nor desired to disobey the order of higher authority or violate any of the Company's Rules and Regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held ..... X X X X Extracts X X X X X X X X Extracts X X X X
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