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The petitioner has filed this Writ Petition challenging the order passed by the respondent, dated 12.10.2017, by which the respondent ordered for continuation of suspension of the Customs Broker Licence issued to the petitioner by exercising its power under Regulation 19(2) of the Customs Broker Licencing Regulation 2013 (CBLR).

2. The petitioner company was issued with a Customs Broker Licence by the respondent and are stated to be in the business for 17 years and have not come to adverse notice of the department earlier. The petitioner had filed bills of entry No.2094269, dated 14.06.2017, 2128764 & 2131930, both dated 17.06.2017, on behalf of the importer M/s.Benq India Pvt., Ltd., (Benq) for import of goods described as BenQ Computer LCD Monitor with LED backlight by classifying the same under tariff heading 8528 52. According to the petitioner, the said tariff heading covers monitors which are capable of directly connecting to and designed for use with an automatic data processing machine (computer). According to the petitioner, they had adopted such classification at the instruction of the importer.

3. The Special Investigation and Intelligence Branch (SIIB) seized the imported goods under mahazars dated 30.06.2017, on the ground that the goods are not designed for use with an automatic data processing machine and the importer has wrongly availed the benefit of customs Notification NO.24/2005-Cus, dated 01.03.2005, (serial No.17). Subsequently, the petitioner moved this Court by way of Writ Petition for provisional release of the goods and the goods were released pursuant to direction issued in the said Writ Petition. After the goods were released by order dated 22.09.2017, the respondent exercised its power under Regulation 19(1) of the CBLR and ordered for suspension of the petitioner's licence with immediate effect as enquiry against the petitioner is contemplated. In terms of Regulation 19(2) of the CBLR, an opportunity of personal hearing was granted to the petitioner on 28.09.2017. The petitioner participated in the said hearing and requested for lifting the order of suspension. The respondent adjudicated the matter and passed the impugned order ordering for continuation of the suspension with the direction that proceedings under Regulation 20 of the CBLR will follow. The petitioner while admitting that as against the impugned order, they have an effective remedy of an appeal before the Tribunal, challenges the same as the order has been passed by abusing and misusing the power conferred on the respondent and alternate remedy would not be efficacious and effective.

4. Mr.C.Natarajan, learned Senior counsel appearing for Mr.Hari Radhakrishnan, learned counsel for the petitioner referred to the Regulation (CBLR) and has drawn the attention of this Court to Regulation No.18. It is submitted that the said regulation provides for revocation of licence or imposition of penalty. That the Commissioner of Customs may subject to the provisions of the Regulation 20, revoke the licence of the customs broker and order for forteiture of part or whole of security, or impose penalty not exceeding fifty thousand rupees on a customs broker on any of the grounds mentioned in clauses (a) to (f) being made out. It is submitted that clauses (c) to (f) of Regulation 18 would result in revocation of licence considering the reasons stated therein. However, clauses (a) & (b) being in the nature of failure to comply with the conditions of the bond or failure to comply with any of the provisions of the Regulation could be visited with a penalty of not exceeding Rupees fifty thousand and the allegation against the petitioner in the instant case is that they have contravened Regulation 11(d) & Regulation 11(e). In as much as the petitioner did not advice their client to comply with the provisions of the Act and failed to exercise due diligence to ascertain the correctness of the information and even assuming ultimately, an order has been passed, it can at best be visited with levy of penalty of not exceeding Rupees fifty thousand and it is definitely not a case, where the suspension of licence is required to be made pending proceedings under Regulation 20 of the CBLR. It is further submitted that the classification of the goods was done based upon the materials, which were given by the client and there is no bar for claiming different classification, as each bill of entry is an independent transaction. In support of such contention, reliance was placed on the decisions in the case of M.M.Ipoh & ors. vs. Commissioner of Income Tax reported in 1968 (67) ITR 106 and Khatema Fibres Ltd vs. State of U.P. Reported in (2001) 1 SCC 458.

6.Mr.T.Pramod Kumar Chopda, learned Senior Standing counsel appearing for the respondent submitted that the petitioner having already received the show cause notice, dated 03.11.2017, under Regulation 20 of the CBLR should submit their reply to the notice and participate in the proceedings before the respondent and a time frame could be fixed within which such proceedings can be concluded by the respondent. It is submitted that on account of the factual matrix, which has been brought out in a clear manner in the impugned order, suspension of the petitioner's customs broker licence is warranted and the respondent has given sufficient reasons in the order dated 22.09.2017, as to why order of suspension was required to be passed under Section 19(1) of the CBLR and has given separate and adequate reasons in the impugned order dated 12.10.2017, as to why the order of suspension should continue. It is submitted that this Court will not go into the factual position and examined the sufficiency of the reasons for placing the petitioner's licence under suspension as the respondent has considered the factual situation, examine the conduct of the petitioner and after affording full and effective opportunity, has passed the impugned order and as such, there is no error in the same. Furthermore, the impugned order clearly states that the petitioner has not been absolved from all the charges made against them in the suspension order dated 22.09.2017 and proceedings under Regulation 20 of the CBLR will follow. It is further submitted that the interpretation given by the learned Senior counsel that at best only penalty not exceeding rupees fifty thousand alone can be imposed is not tenable, as the proceedings under Regulation 20 is in the show cause notice stage. Further, it is submitted that with regard to the decisions cited by the learned Senior counsel stating that there can be no res judicata in tax matters and the importer is entitled to adopt different classification for each bill of entry, it is submitted that the Court should take into consideration the facts of the case, which has been dealt with by the respondent, while continuing the order of suspension and as to how the word computer was inserted in the bill of entry, thereby failing in their obligation contemplated under Regulation 9 of the CBLR. Furthermore, in respect of the identical product, the classification adopted by the very same importer, whose import was handled by the petitioner, was not accepted and the order was confirmed by the Commissioner of Appeals, dated 30.07.2017 and inspite of having knowledge of the said order, the petitioner has filed the bill of entry by adding the word 'computer' with a view to avail the unintended benefit of the notification and this has resulted in passing the impugned order. On the above submissions, the learned counsel prayed for sustaining the impugned order of suspension.