TaxTMI 
TaxTMI 
2022 (7) TMI 1198
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....esponsible for all acts or omissions of his employees during their employment.' (c) Whether the payment of differential amount duty of Rs. 65.40 Lakhs by the respondent to the appellant does not prove admission of liability and involvement of the respondent functioning as importer itself. (e) Whether statements made by the director of the respondent admitting the offence and the involvement thereto binds the respondent company? 2. We have heard Ms. Manasi Mukherjee, learned standing counsel for the appellant and Mr. Arnab Chakraborty, learned advocate, Bar-At-Law assisted by Mr. Aniket Chaudhury, learned advocate for the respondent. 3. The respondent is a Customs Broker having been granted the licence under the provisions of the Customs Broker Licensing Regulations, 2013 (CBLR). The respondent came to adverse notice of the department with regard to the certain import consignments where the combined net weight of the goods imported were manipulated. In this regard, an offence report was drawn by the Directorate of Revenue Intelligence (DRI) and communicated to the appellant department. The respondent's licence was initially suspended and thereafter by order dated 21.09.2017, t....
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....be fulfilled before the Customs Broker accepts to handle the cargo of any one of the parties. If the KYC norms had been complied with, the respondent cannot be heard to say that the whereabouts of the importer are not known. Nothing prevented the respondent to bring the importer to the scene by the making him appear before the authorities to give a statement. The fact that the respondent did not do so but on the contrary paid the sum of Rs. 65,00,000/- towards the part of the duty liability clearly shows that the respondent was the de facto importer and the appellant was fully justified in coming to such a conclusion. The respondent cannot be heard to say that he cannot identify the importer. If the respondent is protecting the so-called importer or if the importer is a non-existent person, then it is the respondent who has to be held to be the principal offender and rightly action was initiated against the respondent. On going through the relevant portion of the statement of the concerned persons, as has been recorded in the order of revocation dated 21.09.2017, we find there is no such inconsistency as having microscopically examined by the tribunal. Even before us, Mr. Chakrabor....
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....ding consequences in the transaction of business by the Custom House officials. 5. The conduct of the respondent does not meet the standards as pointed out by the Hon'ble Supreme Court. In terms of clause (d) of Regulation 11, the respondent was bound to advise his client to comply with the provisions of the Act and in case of non-compliance, the respondent should bring the matter to the notice of the Customs Authorities. In terms of clause (n) of Regulation 11, the respondent has to verify the antecedents, the correctness of the importer, exporter code no. identity of his client and functioning of his client at the declared address by using reliable, independent, authenticate document, data or information. Admittedly, the conduct of the respondent clearly shows that he has breached the said provision. Therefore, we are of the view that the tribunal was not justified in reversing the order passed by the licensing authorities in revoking the respondent licence. 6. Lastly, the tribunal has proceeded to invoke the doctrine of proportionality and held to the punishment of revocation of licence to be very harsh. In our view, such observation and order passed by the tribunal is based o....
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....nd Smith, as long as the Convention is not incorporated into English Law, the English Courts merely exercise a secondary judgment to find out if the decision maker could have, on the material before him arrived at the primary judgment in the matter he had done. (b) If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/Tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority. (4) (b) Whether i....
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....trict Central Cooperative Bank while considering the doctrine of proportionality it was held as follows: "Proportionality is a principle where the Court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and considerations in the case. The doctrine of proportionality thus steps in focus true nature of exercise the elaboration of a rule of permissible priorities De Smith states that 'proportionality' involves 'balancing test' and 'necessity test'. Whereas the former ("balancing test") permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant consideration, the latter ('necessity test') requires infringement of human rights to the least restrictive alternative ['Judicial Review of Administrative Action' (1995); pp 601-605; para 13.085; see also Wade and Forsyth; 'Administrative Law'; (2005); p. 366] 9. In Chairman Cum Managing Director Coal India Limited and Another Versus Mukul Kumar Chowdhury and Others Mumbai AIR 2....
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....ss on the part of respondent authorities warranting judicial intervention, this Court does not find any merits in the present petition. 11. Mr. Chakraborty elaborately referred to the order passed by the tribunal more particularly paragraphs 7 to 12 wherein the learned tribunal has referred to the submissions made on behalf of the respondent. The learned advocate has referred to paragraph 17 of the impugned order to demonstrate that the tribunal had taken note of the contradictory statement of Shri Ratan Baidya regarding suppression of weight of the imported consignments and had mentioned in his statement that 63 weighment slips were tendered however, only 5 weighment slips were relied upon by the DRI for the purpose of investigation. It is pointed out that the learned tribunal rightly held that there is no explanation in the order of revocation regarding mis-declaration of the net weight. Further it is submitted that the learned tribunal rightly held that the statement dated 05.09.2016 of Shri Ratan Baidya is further contradictory when he stated that from March 2016, he had manipulated weight of more than 100 containers of old and used garment handled by the respondent company. H....
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....atives of the respondent company approached him to manipulate the weight of containers by entering cargo weight as given by them manually during weighments and promised to pay Rs. 100 per container for such manipulation and he being poor agreed to the proposal. Further he had stated that he had manipulated weighments of more than 100 containers handled by the respondent. The manipulated weighment slips were not only handed over to the representatives of the respondent and the actual weight and 6 containers were available in the computer installed in the Weigh Bridge. The weigh bridge operator has specifically implicated the Director of the respondent and the G Card holder who dealt with the cargo on behalf of the respondent. The statement recorded from the transporter shows that the declared weight of the container is much less than the actual weight. As noted earlier, the importers did not respond to the summons issued under Section 108 of the Act and the same were returned undelivered with remark "not found/ not existed". Therefore, the licensing authority concluded that the said importers are paper firms and the respondent has kept the department in the dark about the identity ....
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....ase is proved beyond reasonable doubt, but nothing short of that will suffice." (emphasis supplied) 721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, L.J. in Bater v. Bater 1951 P 35 (CA), where he formulated the principle thus: )p.37) "....So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter". 723. Proof of a fact depends upon the probability of its existence. The finding of the court must be based on: 723.1. The test of a prudent person, who acts under the supposition that a fact exists. 723.2. In the context and circumstances of a particular case. 724. Analysing this, Y.V. Chandrachud, J. (as the learned Chief Justice then was) in N.G. Dastane v. S. Dastane (1975) 2 SCC 326 held: (SCC pp. 335, para 24) "The belief regarding the existence of a fact may thus be founded on a balance of probabilities. A prudent man faced with conflicting probabilities concerning a fact situation will act on the supposition that the....