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IN THE HIGH COURT AT CALCUTTA
MD. NIZAMUDDIN, J.
M/s. M.K. Saha and Co. and Another – Petitioners
Versus
Union of India and Others – Respondents
W.P.O. No. 203 of 2021, I.A. No. GA/1 of 2021
Decided On : 06-09-2021
Customs Act, 1962 - Section 154 and 17 - Customs Broker Licensing Regulations, 2018 - Regulation 16 (1), (2) and 8 - Indian Customs EDI system - Challenging the Order of restoration of licence of the Customs Broker/Issuance of “Alert” and “Suspension” of aforesaid licence of petitioner in Customs EDI system - Order of restoration of licence of Customs Broker - Power under Section 154 of the Customs Act, 1962 can Commissioner of Customs - Whether there is any provision of “automatic” or “Deemed Suspension” of licence of Customs Broker under the Customs Act, 1962 or under Customs Brokers Licensing Regulations, 2018 - Whether Commissioner of Customs after passing final adjudication order and when there is any enquiry proceeding pending or contemplating as per Regulation 16 (1) of Regulations, 2018, has jurisdiction to pass order suspending licence of Customs Broker by waving or dispensing with formalities of Regulation 16 (1) and (2) of Regulations, 2018 - Whether term “security deposit” has same nature and character as of “Duty” or “Penalty” - Whether by making pre-deposit of 7.5 % of amount of penalty imposed in adjudication order while filing appeal before Tribunal against original adjudication order would amount to automatic revocation or stay of order of forfeiture of security deposit.
Finding of the Court:
There is no existence of any provision of “Deemed Suspension” or “automatic suspension” of licence of a Customs Broker under Customs Act, 1962 or under Regulations, 2018 and action of respondent Customs authority suspending Customs Broker Licence of petitioner infringing petitioner’s right to livelihood is penal in nature and is without any authority of law and is without jurisdiction since respondent Customs authority has failed to show any document of formal order of suspension of Customs Broker licence under Regulation 16 of Customs Brokers Licensing Regulations, 2018 and that criteria and formalities of Regulation 16 (1) and (2) were fulfilled and observed in the instant case. It is settled position of law that when a statute requires a statutory authority to do a thing in a particular manner the same must be done in same manner and in accordance with the procedure prescribed in law or not at all - Regulation 18 (3) of Regulations, 2018 and no other provisions of said Regulations or the Customs Act does confer any power upon the Commissioner of Customs to waive or dispense with fulfilment of criteria and compliance of formalities under Regulation 16 (1) and (2) of Regulations, 2018, for suspending Customs Broker licence of petitioner - Power of rectification under Section 154 of Customs Act, Commissioner of Customs cannot by way of corrigendum insert additional punishment of suspension of Customs Broker Licence or impose conditions for revocation of suspension of Customs Broker Licence of petitioner in the original adjudication order in the name of correcting clerical, arithmetical or typographical mistake since additional punishment of suspension of aforesaid licence or imposing of conditions for revocation of suspension of Customs Broker Licence would amount to substantial alteration in original order of rectification and same could not be called a correction of clerical, arithmetical or typographical mistake in original adjudication order - Court view that in case of non-compliance of adjudication order by petitioner legal consequences will follow automatically and for compliance or implementation of the original order of adjudication a further corrigendum under Section 154 of Act, 1962, is not required - Court opinion terms “Duty” and “Penalty” cannot be equated with “Security Deposit” since “Duty” is levied on dutiable goods and is actually indirect tax imposed by government on importation or exportation of goods or commodities and “Penalty” arises out of violation or breach of any provision of law and both arise out of an adjudication proceeding while “Security Deposit” is a condition precedent for granting Customs Broker Licence irrespective of any transaction or adjudication or enquiry proceeding which is clear from Regulation 8 of Regulations, 2018 that “Security Deposit” is one of conditions precedent for granting Customs Broker Licence under Regulation 8 of Regulations, 2018 and which has to be complied with before granting said licence.
Result: Writ Petition disposed of.
JUDGMENT :
MD. NIZAMUDDIN, J.
1. Heard Learned Counsel appearing for the parties.
2. In this Writ Petition petitioner has challenged the respondents’ action of displaying of “Alert” in the Customs EDI system as appears at Page-71 of the Writ Petition purported to be uploaded on 18th March, 2021 and displaying that petitioner’s licence as Customs Broker has been suspended on 15th March, 2021 and further challenged the impugned order of corrigendum passed by the respondent Commissioner of Customs, under Section 154 of the Customs Act, 1962, by way of an application being CAN No. 1 of 2021 which appears at Page-14 of the said application which is attested copy of the communication made to the petitioner by a letter dated 03.05.2021 as appears at Page-13 of the said application intimating that Para-32 (iii) of the original order of adjudication dated 3rd March, 2021 has been rectified by inserting that order of restoration of licence of the Customs Broker/Petitioner was subject to fresh security deposit and payment of penalty imposed under the said order.
3. Facts in brief in this case as appear on perusal of the Writ Petition is that petitioner no. 1 is a partnership firm having a customs broker licence which is valid up to 23rd May, 2026. A proceeding under Section 17 of the Customs Broker Licensing Regulations, 2018 (“CBLR 2018” in short) was initiated against the petitioner no. 1 which was finally culminated into original adjudication order dated 3rd March, 2021 being Annexure “P-3” to the Writ Petition imposing punishment of penalty of Rs. 50,000/- and forfeiture of security deposit which was furnished by the petitioner no. 1 under Regulations 8 of Customs Brokers Licensing Regulations, 2018, at the time of granting Customs Broker Licence.
4. It is the case of the petitioner that on 18th March, 2021 while processing a bill of entry at the Indian Customs EDI system it came to know of an “Alert” in EDI system of the Customs that the licence of the petitioner has been suspended against which petitioner made a representation on 19th March, 2021 before the respondent concerned to consider the case of the petitioner so that it can process the bill of entry and transact the business as a customs broker.
5. The petitioner has contended that the impugned action of issuance of “Alert” and “Suspension” of the aforesaid licence of the petitioner in Customs EDI system is in total departure and violation of due process of law as envisaged under Customs Act, 1962 and Customs Brokers Licensing Regulations, 2018 thereunder and it amounts to infringement of petitioners’ right to livelihood and right to carrying on its business.
6. Being aggrieved by the aforesaid impugned action of suspending the aforesaid licence of the petitioner and sitting over the Petitioner’s representation against the same by the respondents, petitioner has filed the instant Writ Petition on 22nd April, 2021. During the pendency of the Writ petition, petitioner has filed statutory appeal on 23rd June, 2021, before the Learned Tribunal by making pre-deposit of 7.5% of the penalty amount of Rs. 50,000/- imposed by the adjudicating authority by the order dated 3rd May, 2021 and also challenging the impugned punishment of forfeiture of security deposit of the petitioner.
7. With the leave of this Court, petitioner has filed connected application being GA No. 1 of 2021 challenging the impugned order of corrigendum passed by the Principle Commissioner of Custom (A&A) under Section 154 of the Customs Act, 1962 purported to be passed in April, 2021 which does not contain date and signature of the Commissioner who has passed such order as appears at page 14 of the said application though it shows attestation of the said order of corrigendum, by the appraiser customs broker section, on 3rd May, 2021 as appears at Page-13 of the aforesaid connected application.
8. Learned Advocate appearing for the petitioner submits that the appeal of the petitioner against the adjudication order dated 3r
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