TMI Blog2023 (4) TMI 785X X X X Extracts X X X X X X X X Extracts X X X X ..... as imported the second hand goods and filed the Bill of Entry for Warehousing without having any valid authorization which violates the provisions of Para 2.13 of Foreign Trade Policy (2015-2020) as amended from time to time. It is observed that Regulation 16(1) provides for suspension of license of the Customs Broker where an inquiry against them is pending or contemplated. It is required only in appropriate cases where immediate action is necessary. Thus, the suspension of CB license is not a mandatory requirement in all cases. Suspension of CB license is resorted only in cases where immediate action is warranted. It is observed that the goods in question have been received in the Port area on 23.02.22 and the Customs Broker has filed the warehousing Bill of Entry on 31.05.22. The Customs Broker was issued the CB Order 19.12.22 and the same was confirmed on 10.01.23. It is observed that after filing of the warehousing Bill of Entry by the Customs Broker, the SIIB (Port) has initiated the investigation against the imported consignment and issued a Show Cause Notice dated 19.02.2022 - the investigation in this case has already completed and there is no urgent necessity ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y No.8902963 dated 31.05.2022 for warehousing of the import consignment of M/s. Eastern Light Industries Pvt. Ltd. and opted for First Check i.e. 100% examination for the import consignment. After First Check on 07.06.2022 , the SIIB (Port) seized the import consignment on 17.06.2022 under Section 110(1) of the Customs Act, 1962 upon the allegation that the consignment of goods namely Data Processing Servers falling under CTH 84714190 for which the warehousing Bill of Entry filed by the Appellant was not supported by valid documents as mandated under Para 2.31 of Foreign Trade Policy, 2015-2020 and non availability of certain NOC from MoEF and BIS Regulations. Accordingly, an investigation was initiated by SIIB (Port) and on completion of the investigation a Show Cause Notice No.KOL/CUS/ADC/PORT/Gr.VE/15/2022 dated 09.12.2022 was issued by the Ld. Addl. Commissioner of Customs Appraising Group 5E(Port), Customs House, Kolkata. On 20.12.2022, the Appellant was issued a CB Order No.21/2022 dated 19.12.2022, wherein the Customs Broker License of the Appellant was suspended under Regulation 16(1) of CBLR, 2018 upon the allegation that the Appellants have violated Regulation 10(d), ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 (257) E.L.T. 20 (Cal.)] 3) N.C. Singha Sons Vs. Union of India [1998 (104) E.L.T. 11 (Cal.)] 4. The Appellant further stated that that arranging the mandatory documents such as BIS Certificate, DGFT authorization and NOC from MOEF for the imported consignment were the responsibility of the importer. The Appellant came to know that the importer was not having the said documents and accordingly advised them that the imported goods cannot be cleared for home consumption. They advised them that to minimize demurrage charges, the goods may be warehoused and filed a warehousing Bill of Entry and opted for First Check. Accordingly, they contended that they have not violated Regulations 10(d), 10(e), 10(f) and 10(m) of CBLR, 2018 as alleged in the notice. 5. The Authorized Representative for the Department stated that the Appellant was aware that second-hand goods were not permissible for import as they are restricted goods . They require authorization from DGFT, NOC from MOEF and Registration with BIS. The Customs Broker has filed the warehousing Bill of Entry which is not permissible for second-hand goods, which are restricted goods . The second hand goods imported falls ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is whether immediate suspension of the Custom Broker license is warranted or not. 8. The Ld. Authorized Representative for the Department argued that the Customs Broker has not advised the importer properly regarding the import of second-hand Data Processing Servers , which are restricted goods . The Customs Broker is aware of the DGFT Notification No.5/2015-2020 dated 07.05.2019, Electronic Information Technology Goods (requirement for compulsory registration) Order 2012, BIS and EPR 2016 and they should have advised the importer properly before filing of the Bill of Entry. Hence, he argued that the suspension of the CB license was proper. The Customs Broker in their reply stated that they were aware of the above-said requirements and informed the importer verbally to obtain the above-said permissions. The Customs Broker stated that the Directors of the importing company were citizens of UK possessing a Master Degree in engineering. They were well aware of the requirements to import the old and used data processing servers and informed them that they were in the process of getting those permissions. However, as the mandatory required documents are not available, they advis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ustoms Broker : Provided that in case the Principal Commissioner of Customs or Commissioner of Customs, as the case may be, passes an order for continuing the suspension, further procedure thereafter shall be as provided in regulation 17. 10. It is observed that Regulation 16(1) provides for suspension of license of the Customs Broker where an inquiry against them is pending or contemplated. It is required only in appropriate cases where immediate action is necessary. Thus, we find that suspension of CB license is not a mandatory requirement in all cases. Suspension of CB license is resorted only in cases where immediate action is warranted. In their submissions, the Appellants stated that in this case the investigation has already been completed and there is no urgent necessity to suspend the license of the Customs Broker. In support of their argument, the Appellant has cited the decision of the Hon ble Calcutta High Court s in the case of Rubee Air Freight Ltd. v. CC (Airport Administration), Kolkata [2010 (257) E.L.T. 20 (Cal.)] wherein it has been held that immediate suspension of the license of Customs Broker is not warranted when the goods were found to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the effect that the petitioner No. 1 allowed one Papu who did not have the requisite licence, to file bills of lading and/or otherwise perform the functions required of the clearing agent. 8 . The Managing Director of the petitioner No. 1 allegedly made a statement to the effect that he did not know the importer. One Papu used to bring documents such as invoices, packing lists and bills of lading and the petitioner stamped the same as per his declaration. 9 . The petitioners have made a specific averment on oath that the consignment was cleared by the petitioner No. 1 through its authorized employee and Papu only remained present as the representative of the petitioner. 10 . In course of hearing, it was submitted that the consignment was cleared by one Sri Tapas Kr. Mukherjee, an employee of the petitioner No. 1, who had duly cleared the G-pass examination and had a valid customs pass. 11 . It is also difficult to understand how customs authorities could have allowed a wholly unauthorised person to clear consignment. The customs authorities could not have allowed the clearance unless an authorised representative of the clearing agent was prese ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CB under Regulation 16 of CBLR, 2018. The Commissioner has also failed to adduce any reason of immediate necessity of exercising power under Regulation 16 of CBLR, 2018 in the impugned order. The Hon ble High Court of Calcutta in the case of Rubee Air Freight Ltd. v. CC (Airport Administration), Kolkata [2010 (257) E.L.T. 20 (Cal.)] at Para 3 held that, The power to suspend a licence is, however, drastic and entails irreversible civil consequences for the licencee. The power to suspend thus, ought to be exercised cautiously. 10 . In the case of N.C. Singha Sons v. UOI [1998 (104) E.L.T. 11 (Cal.)], the Hon ble High Court, Calcutta has held that, That order, in our opinion, is not sustainable because it does not spell out that any immediate action is required to be taken in the matter nor does the order on its face indicate that such action was indeed warranted. [Para 6] 11 . Also, in the case of East West Freight Carriers (P) Ltd. v. Collector of Customs, Madras [1995 (77) E.L.T. 79 (Mad.)] the Hon ble High Court, Madras has held that, In the absence of any indication that there was application of mind by the Collector on the aspect as to whether im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmediate need for the same. It necessarily follows that if suspension is invoked after a long period of time, which in this case is over 95 days, then this by itself is demonstrative of the fact that there was no immediate necessity found. (3) We also find from a perusal of the order impugned that except for mention of an earlier alleged infringement done by the appellant, there is no other grounds spelt-out therein which compelled the Ld. Commissioner to suspend the said licence. In this connection, we find that once the Tribunal vide final order noted above had absolved the appellant of all wrong doings by setting aside the order, again before the Tribunal the Commissionerate cannot take this as a precedential value by holding that appellant had in the past committed any gross irregularity. If this view is not taken, then the very purpose behind the adjudication of the issue by the Tribunal would be lost. Therefore, if this be so, then the present allegation can only be treated as vague. (4) We are, therefore, of the considered opinion that since there has been abnormal delay in the issue of the order impugned from the date of cause of action, therefore following the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inal dated 6-3-2019 by setting aside the suspension of the CB licence of the appellant only. The other part of the Order-in-Original relating to proceeding under Regulation 17 of CBLR, 2018 shall continue in accordance with law. The Commissioner of Customs (Airport Administration), Kolkata shall issue necessary order/circular immediately allowing operation of the CB licence of the appellant. 12. In the case of N.C. Singha Sons v. Union of India [1998 (104) E.L.T. 11 (Cal.)], the Hon ble Calcutta High Court has held as under:- 4 . We have heard the learned Advocates for the parties and considered the rival contentions. Regulation 21(2) of 1984 Regulations read thus : 21(2). Notwithstanding anything contained in sub-regulation (1), the Commissioner may in appropriate cases, where immediate action is necessary, suspend the licence of a Custom House Agent where an enquiry against such agent is pending or contemplated. 5 . A perusal of the order dated 9th June, 1998 passed by the respondent No. 2 clearly suggests that the power under Regulation 21(2) was resorted to apparently without spelling out in the impugned order as to whether any immediate action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing Bill of Entry by the Customs Broker, the SIIB (Port) has initiated the investigation against the imported consignment and issued a Show Cause Notice dated 19.02.2022. Thus, we find that the investigation in this case has already completed and there is no urgent necessity warranting restriction on the Customs Broker. Immediate suspension of the Customs Broker is warranted when there is an apprehension that the CB may interfere in the investigation or tamper with any evidence which will be detrimental to the investigation. There is no such apprehension in this case, as the investigation has already been completed and Notice issued. Thus, there is no urgent necessity to suspend the license of the CB. 14. In their submission, the Appellant stated that they are working as Customs Broker since 1987 and they have an unblemished record for more than 35 years. They have advised the importer properly and they themselves opted for first check in this case. They have fully cooperated in the investigation and even after their full cooperation their Customs Broker license has been suspended. Such a deterrent action will affect the livelihood of several persons working in their company. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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