TMI Blog2023 (6) TMI 1096X X X X Extracts X X X X X X X X Extracts X X X X ..... F CUSTOMS [ 2019 (12) TMI 22 - MADRAS HIGH COURT ] and others which include a pronouncement of our court in ASIAN FREIGHT (UNIT OF ESAN FREIGHT TRAVEL PVT. LTD.) AND ORS. VERSUS THE PRINCIPAL COMMISSIONER OF CUSTOMS (AIRPORT ADMINISTRATION) , CUSTOMS HOUSE AND ORS. [ 2016 (8) TMI 1362 - CALCUTTA HIGH COURT ] which lay down that the stipulation is directory. The first thing to be noticed in this stipulation is that there is no consequence for breach of the time limit prescribed. The regulation does not say that if a report is not furnished within 90 days, no notice is to be taken of the enquiry report. Neither is there any procedure prescribed for extension of time to file the report if it is not filed within time - the only intention that can be ascribed to the makers of the regulation is that it is supposed to be an administrative instruction to the enquiry officer to complete the investigation or enquiry within a stipulated time period. If the enquiry report is delayed, that would not affect the proceedings but steps may be taken against the officer for breach of the administrative instruction. Whether the tribunal was right in not accepting the enquiry rep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arding Commission of an offence under the Customs Act by an exporter and an allegation of breach of negligence by the Customs broker the licensing authority while proceeding against the Customs broker should proceed independently in accordance with law without being influenced by the report and finding of the investigating Authority regarding alleged offence. The findings of the enquiry officer and decision of the Pr Commissioner of Customs (Airport and Admin) with regard Article of Charge-I, and Article of Charge-II are perverse and the same are set aside. However with regard to charge III the allegation of misconduct against the director of respondent of not appearing upon receipt of the summons, there was some negligence on the part of the director of the respondent in not appearing personally before Commissioner of Customs(p) which ought to have been done - However as security deposit amount of respondent is already confiscated by the Appellant and the respondent has suffered suspension for about 8 years no further penalty is required to be passed at this stage. Appeal disposed off. - HON BLE JUSTICE I. P. MUKERJI AND HON BLE JUSTICE BISWAROOP CHOWDHURY Appearanc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Courts, some opining that the direction is mandatory, as in KTR Logistics Solutions Pvt. Ltd. Vs. Commissioner of Cus., Chennai reported in 2020 (371) ELT 685 (Mad) and others which include a pronouncement of our court in Asian Frieght vs. Principal Commr. Of Cus. (Airport Administration) reported in 2020 (373) ELT 323 (Cal), which lay down that the stipulation is directory. The first thing to be noticed in this stipulation is that there is no consequence for breach of the time limit prescribed. The regulation does not say that if a report is not furnished within 90 days, no notice is to be taken of the enquiry report. Neither is there any procedure prescribed for extension of time to file the report if it is not filed within time. In my opinion, the only intention that can be ascribed to the makers of the regulation is that it is supposed to be an administrative instruction to the enquiry officer to complete the investigation or enquiry within a stipulated time period. If the enquiry report is delayed, that would not affect the proceedings but steps may be taken against the officer for breach of the administrative instruction. At this stage, a short analys ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the said Act, an appeal on only a substantial question of law can be entertained. This is not such an exercise of discretion which is so grossly erroneous or unreasonable so as to render it perverse. Hence, in my opinion, no substantial question of law arises from the impugned order of the tribunal. Moreover, the tribunal has also allowed the appeal partly on compassionate grounds. The licence of the respondent was suspended eight years ago and such suspension is continuing. In my opinion, even if the respondent is adjudged guilty of illegal exportation of contraceptives to Bangladesh, eight years suspension of licence has been proportionate punishment considering the dicta of a Division Bench of our court in CUSTA No. 16 of 2020 (Commissioner of Customs (Airport Administration) vs. Marico Logistics Pvt. Ltd.) decided on 21st July 2022 as cited by Mr. Maity, learned advocate for the appellant. For all these reasons, I am not minded to interfere with the impugned judgement and order of the tribunal. This appeal is dismissed. The Hon ble Mr. Justice Biswaroop Chowdhury sitting with myself on the bench shall take a decision in the matter, by a separate judgment and ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the period prescribed under the rules when the said period is directory. It would be reasonable for the Court or Tribunal to accept and consider the enquiry report in such a case and decide the matter on merits. As the Learned Tribunal has not accepted the enquiry report the normal procedure would be to remit the matter back to the Learned Tribunal with a direction to consider the enquiry report and decide the matter on merits. However as five years have passed from the date of disposal of appeal by the Learned Tribunal sending the matter back to the Tribunal will further cause delay and hardship to the parties. Thus the matter should be decided on merits after considering the enquiry report, and other relevant orders passed by the Appellate Authority/Tribunal. Upon perusal of the enquiry report it appears that the enquiry proceedings were held in the absence of the respondent as the respondent did not appear due to pendency of Writ Petition being WP. No. 1076 of 2015 before this Court. The respondent through their Learned Advocate intimated the Enquiry Officer about pendency of the Writ Application. The Enquiry Officer chose to ignore the pendency of the Writ application on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods for export, were prohibitory, whether the type of goods were mentioned or not and the name of the officer who gave him the instruction to file the Chalan at LCS. As the respondent, is a corporate Entity and not a proprietorship firm where there are Directors and Managers, it is to be specified to whom information is given and who gave instruction. In absence of the particulars which ought to have been obtained by the Enquiry Officer before arriving at the findings it would not be safe to put reliance on the statement of Bappa Biswas and accept the findings of the Enquiry Officer. It is clear from the report of Enquiry Officer that the said officer proceeded simply on the basis of statement made by Bappa Biswas before Assistant Commissioner of Customs and the questions put to Bappa Biswas by the said Assistant Commissioner without putting questions to Bappa Biswas independently to seek clarification. Thus it appears that Enquiry proceedings were not conducted in an independent manner. Before going into Article II of the charge under Regulation 11(e) of the Customs Brokers Licensing Regulation 2013 it is necessary to consider the said regulation. As per Regulation 11(e) Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the license issued to the respondent was revoked. As discussed above the findings of the enquiry officer cannot be sustained as it is based on the statement of sole witness Bappa Biswas who could not be cross examined and the enquiry officer did not put questions to obtain material particulars with regard to his statement and the facts of the case, and relied fully on the statement of Shri Biswas before Assistant Commissioner of Customs. As the respondent could not cross examine the witness nor he could adduce evidence it was incumbent upon the Licensing Authority to consider the materials on record including representation to the show cause notice issued upon the respondent. It appears that Pr. Commissioner of Customs (Airport and Admin) without taking into consideration the representation made by the respondent explaining different facts relating to the show cause notice, issued Order of revocation. The following paragraphs of the representation of the respondent which are relevant and quoted below. We state that it is not a fact that we have insisted, Sri Bappa Biswas for filing of Challan at petropole LCS after being informed by him regarding prohibited nature of the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or inducement by the respondent Custom Broker. Thus the finding and order passed by the Appellant Authority is perverse and cannot be sustained in the eye of law. It is well settled principle of law that when a report comes to an Authority who has granted license to a Customs broker regarding Commission of an offence under the Customs Act by an exporter and an allegation of breach of negligence by the Customs broker the licensing authority while proceeding against the Customs broker should proceed independently in accordance with law without being influenced by the report and finding of the investigating Authority regarding alleged offence. The licensing authority should give reasonable opportunity to the Customs broker to adduce evidence and cross examine witness. Where Customs broker prays for time to move competent Court for necessary orders reasonable time should be given in the interest of justice. Moreover when the proceedings against the customs broker is ex-parte the Authority should proceed with abundant Caution so that there is no miscarriage of justice. In the facts and circumstances discussed above I am of the view that the findings of the enquiry officer and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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