TMI Blog2022 (12) TMI 490X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. Since the facts and issues involved in the that case are not different from the one which we are concerned with in the present case, there are no justification or reason to take a different view in this case than the one taken in the case of Unnati Shipping. Although the Respondent failed to discharge its obligation under CBLR, 2013, yet it cannot be denied that efforts were made by the said Respondent to discharge a part of its obligations under the said Regulations and, therefore, the Order with regard to revocation of the Broker Licence would be excessive in the facts and circumstances of the case - Appeal dismissed. - CUSTOMS APPEAL NO.10 OF 2022 - - - Dated:- 7-12-2022 - DHIRAJ SINGH THAKUR VALMIKI SA MENEZES, JJ. Ms. Maya Majumdar a/w Mr. Karan Adik for the Appellant. None for the Respondent JUDGMENT : [Per DHIRAJ SINGH THAKUR, J.] The present Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthority was that it had satisfied itself about antecedent of import-export code (IEC) holders from the DGFT website, which was an authentic website, PAN card provided by the importer, which 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 Broker Licence of the Respondent, ordered the forfeiture of the entire amount of the security deposit furnished by the Respondent under Regulation 18 of CBLR, 2013 (now Regulation 14 of the CBLR, 2018) as also imposed penalty of Rs.50,000/-. 7. An appeal was p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocation of the Customs Broker licence of the Respondent on the grounds of proportionality is sustainable or not? This Bench has dealt with an identical matter on facts and in law in the case of The Principal Commissioner of Customs (General) Vs. Unnati Shipping Agency P. Ltd, Customs Appeal No.6 of 2022, decided on 23 November 2022. In that case also names of M/s Unnati Shipping Agency P. Ltd. And M/s Mahavir Logistics, both figured in the show cause notice, which was served on the Respondent. The factual matrix including the allegations contained in the show cause notice and the alleged violation of the relevant provisions of law, as also the Order of the Adjudicating Authority, are identical. 11. In that case also the adjudicating authority had passed the Order for forfeiture of security deposit, imposed penalty of Rs.50,000/- and ordered revocation of the Customs Broker Licence of the Customs Broker (Unnati Shipping). The Tribunal, however, while upholding the Order as regards the imposition of penalty and forfeiture of the security deposit had set aside the Order to the extent of revocation of the Customs Broker Licence of M/s Unnati Shipping Agency P. Ltd. on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proportionate 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 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 degree of misconduct and all other relevant circumstances and exclude irrele ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
