2020 (3) TMI 103 - AT - Customs

License restoration ordered due to compliance & procedural issues, lack of misconduct link.

The Tribunal ordered the restoration of the license based on findings that compliance, procedural delays, interpretation of regulations, and the lack of a ... Revocation of Customs Brokers / CHA License - non-compliance with the timelines prescribed in the Regulation - HELD THAT:- Though time-lines prescribed in the Regulations have been held to be directory, and not mandatory, there is an implicit responsibility on the part of the competent authority to adhere to the time-lines with acceptable justification for delays, if any. This is more so when the appellant places on record that it was not non-cooperation or intransigence, on their part, that caused delay. It is seen that the suspension itself, though challenged successfully before the Tribunal, and withdrawn on 11th January 2017, another 15 days elapsed for the enquiry proceedings to commence. Thereafter, there is a lapse of more than six months in completion of enquiry and further a lapse of more than two months in revocation of the licence. All of these delayed disengagements with the procedure laid down in the Customs Brokers Licensing Regulation, 2013 had its origin in an incident that occurred in November 2015. Considering the nature and scope of investigations normally undertaken by the Directorate General of Revenue Intelligence, whose report led to the initiation of proceedings under the Regulations, the delay in commencement of the proceedings for revocation of the licence does not command itself as indicative of proper undertaking of responsibility - There is nothing on record to arrive that the ‘G’ card-holder, who was investigated for his key role in the conspiracy to smuggle ‘red sanders’ out of India, was concerned with the activities for which appellant herein was licenced. License is directed to be restored - appeal allowed - decided in favor of appellant. Issues:Revocation of license under Customs Brokers Licensing Regulation, 2013.Analysis:Issue 1: Compliance with TimelinesThe judgment focuses on the compliance with timelines as prescribed in the Customs Brokers Licensing Regulation, 2013. It highlights the importance of adhering to the timelines and the implications of non-compliance. The Tribunal emphasizes the need for a two-step process to consider the merit of restoration claims only if compliance with the timelines has been established. The judgment refers to the decision of the Hon'ble High Court of Bombay in a similar case, emphasizing the significance of timelines in regulatory actions.Issue 2: Procedural DelaysThe judgment discusses the procedural delays in the case, starting from the suspension of the license in 2016 to the final revocation in 2019. It points out the delays in issuing notices, conducting inquiries, and making decisions. The Tribunal highlights the adverse impact of such delays on the livelihood and employment of the individuals involved, emphasizing the need for responsiveness and timely resolution of disciplinary matters.Issue 3: Interpretation of RegulationsThe judgment delves into the interpretation of the Customs Brokers Licensing Regulation, 2013, particularly focusing on whether the timelines prescribed should be considered mandatory or directory. It references various legal precedents and decisions to analyze the nature of the regulations. The Tribunal discusses the implications of interpreting the regulations as mandatory or directory, emphasizing the need for a balanced approach that ensures fairness and efficiency in regulatory actions.Issue 4: Link between Misconduct and License HolderThe judgment addresses the issue of establishing a direct link between alleged misconduct and the licensed individual or entity. It highlights the importance of proving a connection between the actions of a third party, such as a 'G' card-holder investigated for smuggling, and the licensed customs broker facing revocation. The Tribunal emphasizes the principle of accountability and the necessity of establishing clear culpability before taking disciplinary actions.Issue 5: Restoration of LicenseBased on the analysis of compliance, procedural delays, interpretation of regulations, and the lack of a direct link between misconduct and the license holder, the Tribunal concludes that the revocation of the license should not continue. The judgment cites the principles laid down by the Hon'ble High Court and allows the appeal, ordering the restoration of the license. It underscores the importance of fairness, accountability, and adherence to regulatory timelines in disciplinary proceedings.Overall, the judgment provides a detailed analysis of the issues involved in the revocation of a license under the Customs Brokers Licensing Regulation, 2013, emphasizing the need for procedural fairness, timely resolution, and accountability in regulatory actions.