TMI Blog2022 (12) TMI 1251X X X X Extracts X X X X X X X X Extracts X X X X ..... tion caused by suspension. The latitude, and restraint, inherent in the design of regulation 16 of Customs Broker Licencing Regulations, 2018 thus revealed upon careful perusal is made more conspicuous by the appending of the non obstante clause: suspension is not a necessary pre-requisite for initiation of inquiry with intent to revoke licence or impose penalty and, while intention so to do has no bearing on suspension, decision to proceed with enquiry is inevitable precursor for continuation of suspension. It is the latter that we are concerned with in resolving this dispute - The allegation of substitution of samples has not attained final determination as fact and there is no evidence, as yet, linking the appellant to the allegation except by way of vicarious responsibility for misconduct of employee. It may not appear unreasonable for the appellant, as licencee, to be considered as accountable for acts of omission and commission on the part of its employees. The involvement of an individual, remunerated by the appellant, in alleged substitution of samples drawn by customs authorities was the cause for suspension. The continuation of suspension in the impugned order, soug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld not be explained away as representative of any other article in the impugned consignment as well as contents of statements recorded under section 108 of Customs Act, 1962 from persons concerned with the first drawal, alleging substitution of samples with fraudulent intent involving an employee of the appellant, the licence was suspended under the authority of regulation 16 of Customs Broker Licensing Regulations, 2018 and, thereafter, ordered to be continued under suspension. 3. Denying any role in, or even motive for, such substitution, it was contended by Learned Counsel for the appellant that the inordinate delay between alleged commission of the offending act and the suspension was clearly demonstrative of absence of circumstantial immediacy empowering recourse to regulation 16 of Customs Broker Licensing Regulations, 2018 for which the decision of the Tribunal in International Shipping Agency v. Commissioner of Customs (General), Mumbai [2006 (196) ELT 439 (Tri-Mum)] and in P Cawasji Co v. Commissioner of Customs (General), Mumbai [2018 (364) ELT 871 (Tri-Mumbai)] were relied upon. Citing the decision of the Tribunal in G K Shipping Pvt Ltd v. Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udulent activities are not repeated. 6. It would not be appropriate for us, at this stage, to dwell upon the facts cited by both sides as those are relevant to the proceedings designed to follow suspension of licenses. Nor would it be appropriate for us to dwell on decisions cited by Learned Counsel except as directly pertain to suspension of licenses in similar circumstances. We entertain no doubt that suspension is an ad interim measure and, prompted by facts peculiar to alleged breach of obligation devolving upon customs brokers, brooking no delay in separating the broker from the workplace. As suspension is but a preliminary, and merely tentative, signification of intent to saddle detriment sanctioned by the Regulations, our interference is warranted only upon breach of procedure or non-observance of principles of natural justice leading up to it or in circumstances demonstrating lack of empowerment at the threshold itself. 7. It has been contended by Learned Counsel that the appellant had not been furnished with the offence report that triggered the suspension and, thereby, deprived them of opportunity for effective defence. This submission does not merit our considera ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dering suspension of licence except for determination of immediacy when enquiry is pending or contemplated against a customs broker; however, continuation of suspension will be maintainable only upon affording opportunity for post-decisional hearing in compliance thereof with stipulated timelines. The mandate of process is, invariably, observed in letter but, as it happens all too often, disregarding the harmonious construct of the provision as a whole: that, if inquiry has been only contemplated at the time of suspension, continuation of suspension is contingent upon crystallizing intention to take recourse to regulation 17 of Customs Broker Licencing Regulations, 2018 and that, either during pendency or mere contemplation of enquiry, the consequence of non-suspension outweighs deprivation caused by suspension. Unless the two are demonstratively evident, suspension will have traversed the circumscribing intended by law. 10. The latitude, and restraint, inherent in the design of regulation 16 of Customs Broker Licencing Regulations, 2018 thus revealed upon careful perusal is made more conspicuous by the appending of the non obstante clause: suspension is not a necessary pre-re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... except by such acknowledgement. It is only in this circumscribed equation of employee and customs broker under the Regulation that vicarious responsibility of the licencee for acts of omission and commission may be triggered for initiation of proceedings under regulation 17 of Customs Broker Licencing Regulations, 2018. Fastening of that responsibility merely from remuneration payable by the entity proprietorship, partnership or company to an allegedly derelict individual would transgress the oversight permitted to the licencing authority under the Regulations. 13. The involvement of an individual, remunerated by the appellant, in alleged substitution of samples drawn by customs authorities was the cause for suspension. The continuation of suspension in the impugned order, sought to be justified by relying on confessional statements, does not go beyond that allegation at this stage. The individual concerned does not possess any status under the Regulations and act of his, in any capacity whatsoever, is beyond the scope of retribution under the Regulations. To foist deprivation of livelihood as licencee merely on inference, lacking legal foundation and devoid of procedur ..... X X X X Extracts X X X X X X X X Extracts X X X X
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