TaxTMI 
TaxTMI 
2023 (10) TMI 243
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....6(1) of CBLR, 2018. Later, the suspension was confirmed vide Order-in-Original dated 14.07.2023, under Regulation 16(2) of CBLR, 2018. Aggrieved against the impugned order dated 14.07.2023, the Appellant has filed the present appeal. 2. In their grounds of appeal, the Appellant submitted that the alleged transaction was held in the month of February 2019 and no immediate action was warranted to suspend the License in 2023, after a period of four years. Their License was revoked on 23.11.2019 with respect to another alleged offence and the said revocation order was set aside by this Tribunal vide Final Order No. 75405/2022 dated 26.07.2022. The appeal filed by the department against the order of this Tribunal before the Hon'ble High Court of Kolkata is pending at admission stage. The present allegation is also related to the same period and if any action is warranted, the department could have initiated both actions together. Suspending the License afresh again would take away the livelihood of many persons depending on them. 3. In the instant case the Shipping Bills were filed in the month of February, 2019 and the suspension of the License was affected on 23.06.2023, after a....
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....toms, SIB (Port), Custom House, Kolkata, wherein it was alleged that the Appellant has facilitated the attempted overvaluation of the export consignments of M/s Axon International under three shipping bills, all dated 25.04.2019. The Appellant stated that they merely dealt with the filing of the shipping bills as per the documents provided by the exporter. Thereafter, the examination of the goods and issue of Let Export order etc are the duty of the proper officer of customs under Section 50 and 51 of the Customs Act, 1962. Thus, they were no way concerned with the alleged overvaluation of the export consignment. 9. We observe that the CB License of the Appellant was suspended as per Regulation 16(1) of CBLR, 2018. For the sake of ready reference, the said regulation is reproduced below: "Regulation 16. Suspension of license. - (1) Notwithstanding anything contained in regulation 14, the Principal Commissioner or Commissioner of Customs may, in appropriate cases where immediate action is necessary, suspend the license of a Customs Broker where an enquiry against such Customs Broker is pending or contemplated : Provided that where the Principal Commissioner or Commissioner of ....
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....rs of suspension without prior opportunity of hearing might only be issued in exceptional cases, where having regard to the nature of the misconduct and/or offence alleged. It would not be expedient to allow the Customs House Agent concerned to enter the Customs area and transact business. 4. In the instant case, a perusal of the order impugned reveals that the petitioner cleared consignments on behalf of the clients. A clearing agent is concerned with clearance of goods. A clearing agent, prima facie, cannot be penalised for any illegality and/or impropriety of the importer and/or exporter concerned, when there is no fault on the part of the clearing agent. 5. In this case, the impugned order shows that the goods imported were even assessed to duty. Later, however, the goods were opened and examined by officials of the Directorate of Revenue Intelligence, whereupon it was found that the importer had illegally imported goods, of which import was restricted, without the requisite permission/licence. 6. The customs authorities were of the view, and perhaps rightly, that the consignments were liable to confiscation. Even assuming that the consignments were liable to be confis....
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...., the allegation of transaction of business through an unauthorised person seems improbable for the reasons mentioned above. The observations are, however, only prima facie observations. 15. The fact remains that the nature of the allegations in the impugned order prima facie do not warrant immediate suspension of a clearing agent without opportunity of hearing." 11. The Appellant has also relied upon the decision of this Tribunal in the case of M.K. Saha & Company Vs. Commissioner of Customs (Airport & Administration), Kolkata [2021 (376) E.L.T. 534 (Tri.- Kolkata), wherein it has held as under:- "9. We find that the power of suspension under Regulation 16 of CBLR, 2018 is to be exercised in appropriate cases where immediate action is necessary. It is well settled principle of law that only in appropriate cases where immediate action is necessary, suspension is required to be adhered to. In other words, suspension of CB licence cannot be exercised by the authority in a routine and mechanical manner. For invocation of Regulation 16 ibid, it is necessary for the authority to disclose the immediate necessity of exercising such power. In the present case, the alleged export con....
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....parently 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 and under some given set of circumstances, the requirement of immediate action may demand that the clearing agent may be immediately required to be prevented from working any further. The minimum that is required by the Commissioner to enable him to exercise such power is the spelling out of the circumstances in the order warranting the need to take such immediate action and to actually say that immediate action i....