TaxTMI 
TaxTMI 
TaxTMI 
2025 (6) TMI 1444
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....detained by SIIB officers for detailed examination. The importer M/s. Global Impex, Mysore had declared the weight of the containers as 7124 kgs and 6448 kgs whereas the on examination it was found that the goods were 13520 kgs and 14718 kgs respectively. Since there were huge variation between the quantities, documents for past imports were sought from the concerned CFS. It was ascertained that the importer had imported 18 such consignments in the past. On scrutiny of the said weighment slips, it was found that the importer had mis-declared the weight in respect of 10 previous consignments. The mis-declared weight worked out to 65529 kg. On perusal of the dockets, it was observed that weighment slips were not available for 6 dockets. It was also observed that out of 10 consignments wherein the importer had mis-declared the weight, 9 consignments were cleared from M/s. Continental Warehousing Corporation and there were mis- match of weight in weighments slips available in the dockets and weight shown in the weighment slips by Continental Warehousing Corporation. After due process of law, the Ld. Adjudicating Authority issued an Order in Original (OIO), imposing a penalty of Rs.50,0....
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....n 11 [d] invoked having only provided for advising the importer of the legal requirements to be complied with by them as per law and which cannot be pressed into service when importer commits any mis- declaration without the knowledge of the CB as in this case there is no justification for imputing the said contravention against them especially when their director had cleared stated that he was not aware of the said mis-declaration against which no contrary evidence has been brought on record. He prayed that the Tribunal may be pleased to set aside the impugned order and allow their appeal. 3.2 Shri Anoop Singh, Ld. Authorized Representative for the respondent-department has taken us through the impugned order. He has in particular drawn our attention to paras 25, 27 and 28 of the impugned order, to stress that the CB was involved in aa blame worthy act in not reporting the actual weight of the containers at the time of clearance of cargo and that the action taken them is commensurate with the action as the licence has not been revoked of deposit forfeited and only a penalty has been imposed. He stated that evidence need not always be direct, especially in clandestine matters and....
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....ns of Regulation 2017) of the Customs Brokers Licensing Regulations, 2013, I order as below: (i) I impose a penalty of Rs 50,000/- (fifty thousand rupees only) on the Customs Broker, M/s. Raj Brothers Shipping Pvt. Ltd, Licence No. CHN/R-294/2013 (PAN No. AAGCR394M) under Regulation 18 of CBLR, 2013. (ii) I neither revoke the CB license nor order for forfeiture of security deposit." He hence prayed that the appeal may be rejected. 4. We have heard the Ld. Counsel for the appellant and the Ld. AR for revenue representing the contesting parties. We have also perused the Appeal Papers and considered the facts of the case. We find that the issues at Sl. No. (2) and (3) at para 3.1 involve a mixed question of fact and law. The pleading is found to be beyond the issue in the file of the Original Authority. The issues were also not taken up in their written submission dated 31.05.2018 before the original authority, in response to the SCN, as seen filed along with their appeal. It is hence rejected as inadmissible at this stage as it would allow a totally new proceedings to be started. As stated by the Hon'ble Apex Court in Warner Hindustan Ltd. Vs Commissioner [1999 (113) E.L.T. 24]....
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.... authority. It may be open to the appellate authority to interfere with it but not to the High Court or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under 'Article 226 is one of judicial review'. It "is not an appeal from a decision, but a review of the manner in which the decision was made". In other words the power of judicial review is meant "to ensure that the individual receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court." (emphasis added) 5.3 In Caretel Infotech Ltd. Vs Hindustan Petroleum Corpn. Ltd., (2019) 14 SCC 81 also the Hon'ble Supreme Court observed that Courts are expected to exercise restraint in interfering with the administrative decision and ought not to substitute their view for that of the administrative authority. Mere disagreement with the decision- making process would not suffice. 6. The appellant has stated that the initiation of the present proceedings even after revocation of t....
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....ed by the cancellation of the licence, but because the penal remedy of cancelling a non- existent licence is not tenable. The same is not the case with the imposition of a penalty against a person. Further the impugned order has neither revoked the licence nor ordered forfeiture of security deposit but has only imposed a penalty under Regulation 18 of the CBLR 2013. The appeal on this ground hence does not succeed. 7. The appellant has stated that the impugned order has traversed beyond the scope of the notice to allege that they connived with the importer and forged the documents which are contrary to the true facts on record and beyond the scope of the notice issued to them makes the order totally redundant and otiose. 7.1 It is seen from paras 25 and 27 of the OIO reproduced above that the order when read in totality is one of the lack of due diligence. We find that CBLR 2013 requires a CB to discharge its functions with diligence and efficiency. The appellant merely stating that he was not aware of the said mis-declaration would not suffice. Regulation 11(d) requires the CB to advise his client to comply with the provisions of the Act and in case of non-compliance, shall brin....
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.... in that role they are also the ears and eyes of the department. A partner who is only willing to abide by the letter of law and not its spirit, may jeopardice not only tax revenue but also the security of the nation and the department, who licenced him, may be better of without his services. A chain is as strong as its weakest link. Violations, even without intent, are sufficient to take action against the CB, hence a penalty may be the subject-matter of a breach of statutory duty. It is meant to be a deterrent. In Noble Agency Vs Commissioner of Customs, Mumbai [2002 (142) E.L.T. 84 (Tri. - Mumbai)] a Division Bench of the CEGAT, West Zonal Bench, Mumbai observed :- "The CHA occupies a very important position in the Customs House. The Customs procedures are complicated. The importers have to deal with a multiplicity of agencies viz. carriers, custodians like BPT as well as the Customs. The importer would find it impossible to clear his goods through these agencies without wasting valuable energy and time. The CHA is supposed to safeguard the interests of both the importers and the Customs. A lot of trust is kept in CHA by the importers/exporters as well as by the Government Age....
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....ation for imputing the said contravention against them especially when their director had cleared stated that he was not aware of the said mis-declaration against which no contrary evidence has been brought on record. 9.1 We find that CBLR 2013 requires the appellant to discharge its functions with diligence and efficiency and display the prudence expected of a common man. Merely stating that he was not aware of the said mis-declaration would not suffice. Regulation 11(d) requires the CB to advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be. The learned commissioner has observed that the CB who collects the weight slips should have noticed the discrepancy in the weight at the time of clearance. He should further have noticed the difference font size, dotted lines atcc to entertain a reasonable doubt about misdeclaration of weight but he failed to advise the importer to comply with the provisions of the customs act and when non-compliance was noticed he should have brought it to the notice of the department. By no....
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.... without hearing the appellant. As regards the non-mention of a sub section or mentioning a wrong section in the SCN it is seen that the merely omitting to mention a sub- section of a section cited in the SCN, would not vitiate the show cause notice as the assessing officer was otherwise competent to issue the same. This principle has been laid down by the Hon'ble Supreme Court in the case of JK Steel Vs Union of India [1978 (2) E.L.T. (J355)], and also in the case of Sanjana Vs Elphinestone Spinning & Weaving Mills [1978 (2) E.L.T. (J399)]. No prejudice has been caused to the appellant who was aware that action was being taken against him under Regulation 11 of CBLR 2013, for his alleged blame worthy conduct. It cannot hence be stated that the IO travelled beyond the SCN. Moreso it was due to their own negligence or carelessness that they were not heard during the dates of PH fixed by the IO. 11. We have also examined the penalty imposed. We find that one of the material factor for consideration while imposing a penalty, is whether there was any actual loss or potential loss of revenue as a consequence of the actions of the appellant. We find that the penalty imposed is not dispr....
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.... their legal acumen to assist the authorities in the administration of justice fairly and in a cordial manner by maintaining decorum of language, while conducting legal proceedings on their clients behalf. While they are free to point out portions of the order under challenge, which are felt to be not legal or proper, they should desist from casting aspersions on the decision of quasi-judicial/ judicial authorities. Just as the use of unduly strong, intemperate, sarcastic or extravagant language in a judgment against the parties before them, has been repeatedly disapproved by Constitutional Courts [See: State of U.P. Vs. Mohammad Naim - 1964 AIR 703 / 1964 SCR (2) 363]." A 5 Judge Bench of the Hon'ble Supreme Court of India in Smt Ujjam Bai vs State Of U.P [AIR 1962 SUPREME COURT 1621], held; "A taxing authority which has the power to make a decision on matters falling within the purview of the law under which it is functioning is undoubtedly under an obligation to arrive at a right decision. But the liability of a tribunal to err is an accepted phenomenon. The binding force of a decision which is arrived at by a taxing authority acting within the limits of the jurisdiction conf....