Page 195 - ELT_15th May 2020_VOL 372_Part 4th

2020 ] MERICO LOGISTICS PVT. LTD. v. COMMR. OF CUS. (AIRPORT & ADMN.), KOLKATA 585

tem. This would not have been possible unless the Weigh Bridge was in opera-
tion. So there are plethora of contradiction in the statement of Shri Ratan Baidya
so as to confirm the manipulation in the weight conclusively. We also find that in
spite of having connived with the appellant company as stated in the investiga-
tion, the department has not initiated any action against Shri Ratan Baidya. In
view of the above, and corroborative evidences on record other than statements
recorded under Section 108 of the Customs Act, it would be too a harsh penalty
on the appellant by revocation of their CHA licence as has been held in case of
Mehul & Co. v. CC (General), Mumbai [2017 (357) E.L.T. 644 (Tri. - Mum.)]. The
relevant paragraph is reproduced as under :-
“5. One of the contentions of the appellant is that the proceedings were in-
itiated and concluded without any substantive reliance on credible evi-
dence. We do note that there are a number of surmises in the inquiry report
and in the findings of the adjudicating Commissioner. Much reliance has
been placed on statements recorded under Section 108 of Customs Act,
1962. Its evidentiary value in proceedings initiated in connection with in-
vestigation into smuggling has its worth. However, Section 108, which
reads thus
‘108. Power to summon persons to give evidence and produce
documents. - (1) Any gazetted officer of customs duly empowered
by the Central Government in this behalf, shall have power to
summon any person whose attendance he considers necessary ei-
ther to give evidence or to produce a document or any other thing
in any inquiry which such officer is making under this Act.
(2) xxxxx
(3) xxxxx
(4) Every such inquiry as aforesaid shall be deemed to be a judi-
cial proceeding within the meaning of Section 193 and Section 228
of the Indian Penal Code (45 of I860).’
incorporated in the statute for carrying out an inquiry under the Customs
Act, 1962 is pertinent only for the intended purpose. Proceedings under the
Customs Brokers Licencing Regulations, 2013 are in pursuance to regula-
tions framed by the Central Board of Excise & Customs under Section 146
of Customs Act, 1962. It is a self-contained provision that empowers issue,
operations, suspension and revocation of broker licences. It also needs not-
ing that, where the statute intends to cover subordinate legislation, there is
a specific incorporation of the expression ‘and the rules framed thereunder.’
Such qualifying is conspicuously absent in Section 108. That is not entirely
surprising as proceedings under the Customs Act, 1962, that may resort to
inquiry under Section 108 may result only in fiscal detriment while pro-
ceedings under the Customs Brokers Licencing Regulations, 2013 could
lead to deprivation of livelihood. Conformity to process and evidence be-
yond statements are a prerequisite for acts that are detrimental to of the
livelihood of a licencee. The inquiry report has accorded overwhelming rel-
evance to the contents of the statements recorded under Section 108. While
these could be relied upon for the narration, as it were, of the allegations,
they are not sufficient to establish the charge of contravening of the Regula-
tions whose prescriptions lack the specificity of Sections 111 and 113 of
Customs Act, 1962. The lack of acceptable, credible evidence to sustain the
allegations is a taint on the proceedings.”
EXCISE LAW TIMES  15th May 2020  195