AI OCR 
TaxTMI 
TaxTMI 
TaxTMI 
2017 (12) TMI 624
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.... LED backlight by classifying the same under tariff heading 8528 52. According to the petitioner, the said tariff heading covers monitors which are capable of directly connecting to and designed for use with an automatic data processing machine (computer). According to the petitioner, they had adopted such classification at the instruction of the importer. 3. The Special Investigation and Intelligence Branch (SIIB) seized the imported goods under mahazars dated 30.06.2017, on the ground that the goods are not designed for use with an automatic data processing machine and the importer has wrongly availed the benefit of customs Notification NO.24/2005-Cus, dated 01.03.2005, (serial No.17). Subsequently, the petitioner moved this Court by way of Writ Petition for provisional release of the goods and the goods were released pursuant to direction issued in the said Writ Petition. After the goods were released by order dated 22.09.2017, the respondent exercised its power under Regulation 19(1) of the CBLR and ordered for suspension of the petitioner's licence with immediate effect as enquiry against the petitioner is contemplated. In terms of Regulation 19(2) of the CBLR, an opportu....
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....d there is no bar for claiming different classification, as each bill of entry is an independent transaction. In support of such contention, reliance was placed on the decisions in the case of M.M.Ipoh & ors. vs. Commissioner of Income Tax reported in 1968 (67) ITR 106 and Khatema Fibres Ltd vs. State of U.P. Reported in (2001) 1 SCC 458. 5. Further, it is submitted that res judicata does not apply in matters pertaining to tax for different assessment years, because res judicata applies to debar courts from entertaining issues on the same cause of action whereas the cause of cause for each year is distinct. In support of such proposition, learned counsel placed reliance on the decision in the case of BSNL vs. UOI reported in (2006) 145 STC 91 (SC) para 20. Further, it is submitted that the power under Regulation 19(1) is invokable, where immediate action is necessary to suspend a licence of customs broker. However, in the instant case, the licence was suspended after nearly three months after the seizure of goods and such suspension is not warranted. Further, it is submitted that show cause notice under Regulation 20 of the CBLR, dated 03.11.2017, has been issued and the petitione....
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.... has been dealt with by the respondent, while continuing the order of suspension and as to how the word computer was inserted in the bill of entry, thereby failing in their obligation contemplated under Regulation 9 of the CBLR. Furthermore, in respect of the identical product, the classification adopted by the very same importer, whose import was handled by the petitioner, was not accepted and the order was confirmed by the Commissioner of Appeals, dated 30.07.2017 and inspite of having knowledge of the said order, the petitioner has filed the bill of entry by adding the word 'computer' with a view to avail the unintended benefit of the notification and this has resulted in passing the impugned order. On the above submissions, the learned counsel prayed for sustaining the impugned order of suspension. 7. Heard the learned counsels appearing for the parties and perusing the materials placed on record. 8. In Commissioner of Customs vs. K.M.Ganatra & Company reported in (2016) 4 SCC 687, the Hon'ble Supreme Court quoted the observation of CEGAT, West Zonal Bench, Mumbai, with regard to the role of a Customs House Agent like the petitioner. It was pointed out that the Cu....
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....h was availed and the Commissioner has passed the impugned order continuing the suspension and stating that proceedings will be initiated under Regulation 20. In accordance with the said observations, show cause notice dated 03.11.2017 has been issued and received by the petitioner. 9. Mr.C.Natarajan submitted that it is alleged that the petitioner has contravened Regulation 11A(d)(e). Both these alleged violations cannot visit the petitioner with the penalty of revocation of licence, which is clear from reading of regulation 18. It is submitted that the grounds mentioned in clauses (a) to (f) in Regulation 18 are the grounds for revocation of licence or imposing of penalty. It is a submission that if a Customs Broker has committed violations contemplated under clauses (c) to (f), it would undoubtedly result in an order of revocation whereas, if Customs Broker contravenes clauses (a) & (b) of Regulation 18, it would be a case for imposition of penalty, which cannot be more than Rupees Fifty Thousand and therefore, the petitioner's licence could not have been placed under suspension. The submission made on behalf of the petitioner cannot be countenanced, as Regulation 18 provid....
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....s of a kind solely or principally used in automatic data processing system under 8471. This classification was not accepted by the Department and an Order-in-Original, dated 18.01.2012, was passed, rejecting the petitioner's classification and classifying the goods under 85285900. The importer filed appeal before the Commissioner of Appeals, which was dismissed by order dated 30.07.2014. This order has attained a finality, as no appeal was preferred against the order within the permitted time. It appears that subsequently, the petitioner has been handling the very same consignments and effecting clearances for the very same importer through the Mumbai Port. After lapse of about two years, the present bill of entry has been filed. The petitioner does not plead ignorance or lack of knowledge of the order-in-original, dated 18.01.2012, confirmed in order-in-appeal, dated 30.07.2014, in respect of an identical consignment. In such circumstances, it has to be seen as to what is the duty cast upon a Customs Broker, as it has been held that he is supposed to safeguard the interest of both the importers and the Customs. 11. Regulation 11 lists out the obligations of a Customs Broker a....