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TaxTMI 
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TaxTMI 
2023 (6) TMI 1096
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....e security amount, also ordered by the adjudicating authority, was not interfered with. The ground on which the tribunal interfered with the order of the Commissioner was that in terms of regulation 20(5) of the said Regulations, the enquiry report was to be submitted within 90 days from the date of issuance of the show cause notice on 31st July 2015. The enquiry report dated 7th December 2015 had been submitted on 16th December 2015 before the relevant authority, much beyond time. For this reason, the report was not accepted by the tribunal. On this solitary ground the order of the Commissioner was set aside. Section 130 of the Customs Act, 1962 empowers this Court to hear an appeal from the above order passed by the tribunal only if a substantial question of law is involved. The Commissioner of Customs (Airport & Administration) invoked Section 130 and filed the instant appeal before us. On 18th December 2018 this Court after condonation of a marginal delay in preferring the appeal admitted it, to be heard on the following questions: "i. Whether the Learned Tribunal's observation that the prescribed time limit for taking step in each and every stage in the sub Regulations o....
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....ended. In accordance with the regulations, this suspension was reviewed. On 24th June 2015 it was confirmed followed by issuance of a show cause notice on 31st July 2015. The respondent was required to answer this show cause notice. On consideration of the show cause notice and the reply thereto, the enquiry report was to be submitted by the enquiry officer under regulation 20(5) of the said regulations, within 90 days of issuance of the show cause. The Commissioner, by taking into account all the materials on record, on 16th August 2016 had made the order holding the respondent guilty and revoking his licence altogether, forfeiting his security deposit. The question which now arises in this appeal is whether the tribunal was right in not accepting the enquiry report filed beyond time. As I have observed before, the requirement to file the report within 90 days was not mandatory at all. Even if filed on 21st December 2015 well beyond 90 days, it had been taken on record by the adjudicating authority. However, it was the discretion of the tribunal as to what weight it would put on the enquiry report. The tribunal, presided over by a retired High Court Judge, had on consideration....
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....of the Customs Broker Licensing Regulations 2013 and the object of the Regulation and the Customs Act it will appear that Regulation 20(5) is directory. Now the question which comes for consideration is whether the Tribunal was correct in refusing to accept the enquiry report on the ground that it is submitted after 90 days when the said period is directory. The obvious answer is in the negative. It is one thing to allege that a proceeding is pending for a considerable period without any result and causing serious prejudice to rights of the person making such allegation, and it is another thing to allege that proceedings is not complete after a long period expired than that provided under the Rules. In the former case Courts or Tribunals are empowered to quash the pending proceedings if it appears that the delay in proceedings have already caused great prejudice to the party making the allegation and further delay will cause miscarriage of Justice. In the second case when the proceedings are complete and decision taken the said proceedings it would not be reasonable to discard the decision or enquiry report simply on the ground of delay or on the ground of submission after the stat....
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....Customs Act before the Assistant Commissioner of Customs, 15/1 Strand Road Kolkata that he was fully aware that the goods were of prohibitory nature to make their export out of India and he conveyed this fact to both, the exporter and the CB. It was also asked to him that why he did not bring this fact in the knowledge of the Deputy Commissioner of Customs or Assistant Commissioner of Customs he stated that he was an small employee of the CB and the C.B. insisted him to file the papers to make export of the goods. Further the C.B did not produce any material fact before the undersigned that either he had advised the exporter to comply with the provisions of the Act or had bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs in case of non-compliance. I therefore hold the charge as 'ESTABLISHED' It will appear from the observation of the Enquiry Officer that although he knows that the respondent did not appear in the enquiry proceedings he went on to hold that the C.B. respondent did not produce any material fact before him that he had advised the exporter to comply with the provisions of the Act or had brought the matter to the....
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....2015 was given in details, when a charge-sheeted person is unable to appear in Enquiry Proceedings and Cross Examine witnesses or adduce evidence it is incumbent to consider the written reply to show cause notice or representation submitted to Enquiry Report thoroughly so that no injustice is caused. It appears from the reply to the show cause notice that in terms of the Order of this Court the respondent was present at the time of hearing before Commissioner of Customs (Prev) but respondent was prevented from cross examining Shri Bappa Biswas. Moreover the Commissioner of Customs (Prev) West Bengal who were investigating the offence did not held that shipping and clearing Agents Pvt. Ltd has colluded with the exporter M/S Debnath International for unlawful gain and have not implicated any officers or staffs of shipping and clearing (Agents) Pvt. Ltd in the criminal case instituted against the proprietor and staff of the exporter M/S. Debnath International. On the basis of offence report received from Commissioner of Customs (Preventive)West Bengal it appeared to the Commissioner of Customs (Airport and Admn) that the respondent has committed breach of Regulation and the said autho....
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.... duly issued authorization in our favour under his letter dated 2.1.2014 and handed over his export invoice No: DI/ST/Exp/48/13-14 dated 2.1.2014 along with packing list to our employee at petropole L.C.S wherein at the column 'description of goods' no brand name was mentioned. On the basis of the export documents, the Bill of Export was prepared by our employee at the LCS and the same was filed upon the bona fide belief no contraband goods were there. Prior to undertaking the job of clearance of export we had duly obtained KYC of the exporter also All related documents have already been submitted for the same." The Pr Commissioner of Customs (Airport and Admn) did not consider the 1st para and 3rd para mentioned above which are relevant while passing the order of revocation of License of the respondent. However on the consideration of 2nd paragraph supported by document the said authority rejected the document on the suspicion that the said document was made under a threat or inducement made to exporter. This view of the Authority has no basis and is a non-application of mind. When a person is already implicated in a criminal case and has faced arrest there is no ground to presu....