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TMI Blog2022 (12) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... ther the CESTAT is right in law in allowing the appeal of the CB being the first breach irrespective of the contravention of provisions of Regulations of the Customs Brokers Licensing Regulations and gravity of the offence ? 3. Briefly stated the material facts are as under : The Respondent is a duly licenced Customs Broker. A show cause notice dated 26 February 2018 issued under Regulation 20 of the Customs Broker Licensing Regulations, 2013 (CBLR, 2018) was served upon the Respondent pursuant to an inquiry conducted against the Respondent. In the show cause notice, it was alleged that as per the information obtained from the Additional Director General, Directorate of Revenue Intelligence, Mumbai Zonal Unit, M/s Forus Enterprises, New D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is also an authentic instrument, bank attested signatures and copy of the ledger. The adjudicating authority, however, held the Respondent Customs Broker guilty of negligence as also held that it had failed to discharge its duty under CBLR, 2013 (now CBLR, 2018). It was also held that the Customs Broker was not diligent in undertaking KYC of the background of the importers and accepted documents without verifying the signatures on the authority letter and PAN card of the IEC holders. It was also held that had the Customs Broker been vigilant, loss to the revenue of the Government could have been prevented. In those circumstances, the adjudicating authority, the Commissioner of Customs, Mumbai Zone-1, in addition to revoking the Customs Bro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent that the CBLR, 2013 did not envisage a physical verification of the antecedents of the importer as the Customs Broker is located in Mumbai and an importer may be situate elsewhere in the Country. A physical verification would entail expenses which would be beyond the meagre commission which a Customs Broker is entitled to receive for the services rendered by him for clearing the imports through the Customs. The emphasis was that it had actually verified the antecedents and 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of revocation of the Customs Broker Licence of M/s Unnati Shipping Agency P. Ltd. on the ground of proportionality. This Bench by virtue of judgment and Order dated 23 November 2022 upheld the Order of the CESTAT by placing reliance on the doctrine of proportionality. 12. 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. 13. In Ranjit Thakur Vs. Union of India & Ors. (1987)4 Supreme Court Cases 611, the Apex Court, while testing the imposition of punishment on the principle of proportionality held : 25. Judicial review generally speaking, is not directed against a decision, but is directed against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure of the principle of 'proportionality' which is recognised in the administrative law of several of our fellow members of the European Economic Community...." 27. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." 14. In Chairman-cum-Managing Director, Coal India Ltd. and anr vs. Mukul Kumar Choudhuri & ors. (2009) 15 Supreme Court Cases 620, it was has held : 19. The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India & ors vs. Bodupalli Gopalaswami (2011) 13 Supreme Court Cases 553, the Apex Court has held : "28. 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 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 provi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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