TaxTMI 
TaxTMI 
TaxTMI 
2023 (4) TMI 785
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.... 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), 10(e), 10(f) and 10(m) of CBLR, 2018 while discharging their duty with respect to the import consignment of M/s. Eastern Light Industries Pvt.Ltd. under Bill of Entry No.8902963 dated 31.05.2022.An Order-in-Original No.KOL/CUS/AIRPORT/ADMN/02/2023 dated 10.01.2023 was passed by the Ld. Commissioner of Customs (Airport & ACC), West Bengal, Kolkata, whereby the Ld. Commissioner has ordered for continuation of the suspension and initiated further proceeding under Regulatio....
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.... 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 under Shedule I of E Waste Management Rules 2016 meant for mandatory Extended Producer Responsibility( EPR). Hence, the goods so imported are allowable only against valid EPR Authorization. Accordingly, they argued that Customs Broker has violated the provisions of Regulation 10(d), 10(d), 10(f) and 10(m) of CBLR, 2018 and hence suspension of the license by the Department was in order. In support of his argument for immediate necessity to suspend the license, he cited the judgment....
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....nd 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 advised the importer not to file the Bill of Entry for home consumption. Since they were incurring heavy demurrage, a decision was taken to file warehousing Bill of Entry to minimize the losses. Accordingly, they filed warehousing Bill of Entry and opted for 100% examination. The Customs Broker further stated that they have properly advised the requirements before filing the Bill of Entry for second-hand machineries and instructed the importer to obtain the necessary documents. Since the imp....
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....uspension 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 'restricted goods' on examination. Relevant portion of the order is reproduced below :- "2. The power of the Commissioner of Customs to suspend a Customs House Agent's Licence has been questioned. This Court, however, is of the prima facie view that power to suspend Customs House Agent's Licence does exist and in appropriate cases, where there is immediate necessity of issuing an order of suspension, the requisites of Regulation 22 need not be complied with. 3. The power to suspend a licence is, ho....
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....s 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 present. The observation is, however, only a prima facie observation. In any case, the contravention alleged, prima facie, did not warrant immediate suspension. 12. Whether the petitioner No. 1 contravened the rules applicable to it or not is to be decided in compliance with the requisites of Regulations 20(1) and 22. 13. It is nobody's case that the petitioner No. 1 was not at all authorised to clear the goods on behalf of the importer. The fact that one Papu brought requisite shipping documents and gave instructions on the basis of which the petitioner No. 1 proceede....
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..... 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 immediate action was necessary, in my opinion, the impugned order cannot be sustained. The Collector gets jurisdiction to suspend that licence in cases where immediate action is necessary." [Para 9] 12. Though Customs House Agents Licensing Regulations, 1984 has been subsequently superseded by the Customs House Agents Licensing Regulations, 2004 and further vide Customs Brokers Licensing Regulations, 2013 and now Customs Brokers Licensing Regulations, 2018 is in effect, the power of suspension of licence of CHA/CB remains the same with additional provision of post-decisional hearing and confirmation by the Commi....
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....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 ratio of the numerous decisions cited by both of the Hon'ble High Court of Calcutta & Madras as well as the Tribunal, we find that this delay in ordering suspension has fettered the issue and therefore the order impugned is liable to be set aside. (5) We also find that the Tribunal in the case of MVT International v. CC as in 2000 (117) E.L.T. 258 (Tri.) = 2000 (36) RLT 799 (CEGAT) has held that over-invoicing is not an offence under Section 18(1)(a) of FERA, 1973 and therefore also not an offence under Section 11 of the Customs Act, 1962. In this decision, the Hon'ble Tribunal had also noted the decision of the Tribunal in the case of Shilpi Ex....
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....s : "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 was necessary so as to suspend the licence of the appellants with immediate effect. Undoubtedly a plain reading of the Regulation 21(2) clearly stipulates that the requirement to take immediate action is a sini qua non to the suspension of a licence under Regulation 21(2) because such suspension is not by way of any punishment, as is contemplated by Regulation 21(2), but is required to cater to a situation warranting immediate action. The purpose of resorting to immediate suspension of a licence because of some immediate action is to immediately stop the activities of the clearing agent so as to disable him from taking any further action in the matter since, under a particular situation a....
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.... 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. They are not in a position to carry out their operations in the port area. Hence they requested for revocation of suspension which will allow them to operate and perform their clearing agency work. 15. We find that the clearing agent has filed the warehousing Bill of Entry, as the importer was not having the mandatory documents. Arranging the documents is the responsibility of the importer. We cannot find fault with the Customs Broker for not arranging the documents before importation of the second hand goods. As the mandatory documents could not be arranged in time, the Customs Broker has advised the importer to file Warehousing Bill of Entry to save demurrage charges. Even though warehousing is....