Page 101 - ELT_1st July 2020_Vol 373_Part 1

2020 ] COMMR. OF CUSTOMS (AIRPORT & ADMIN.) v. EXPRESS CLEARING AGENCY 11

about 81 days in preferring the appeal is condoned and the appeal is taken on
record.
2. The appeal is taken up for immediate consideration.
3. The Revenue is in appeal against an order setting aside the suspen-
sion of the first respondent Customs House Agent by the judgment and order
under appeal dated December 15, 2017.
4. A consignment of some music system was handled by the first re-
spondent at the Kolkata Port. The sound recording system was a multifunctional
system in the sense that it played the radio and had provisions for playing sound
recordings in the form of USB, SD, MP3 and FM together with Bluetooth. The
perceived mistake on the part of the first respondent herein was to classify the
goods as multimedia speakers and not as radio receivers. The issue pertained to
the mis-description of the goods or the erroneous classification of the goods. The
manner in which the first respondent classified the goods attracted a lower rate
of import duty. The manner in which the department perceived the goods to be,
would attract a higher rate of duty.
5. An order of adjudication was passed on September 12, 2017 wherein
the importer and the first respondent herein as the Customs House Agent of the
importer were named. The first respondent herein appealed against such order
and by the resultant order of October 26, 2017 issued by the Commissioner of
Customs (Appeals), the order of penalty was set aside.
6. In the meantime, independent proceedings were initiated against the
first respondent for revoking or suspending the licence of the first respondent as
a Customs House Agent. The basis of such order of suspension dated November
1, 2017 was the order of adjudication of September 12, 2017 which had, by then,
been set aside qua the first respondent herein on October 26, 2017. It was such
order of November 1, 2017 which was challenged by way of a petition under Ar-
ticle 226 of the Constitution in this Court.
7. By the judgment and order impugned dated December 15, 2017, the
writ petition was allowed since the very basis of the order of suspension had
been destroyed upon the order of adjudication of September 12, 2017 being set
aside qua the first respondent by the appellate order of October 26, 2017. The writ
court, quite appropriately, did not deem it necessary to call for affidavits.
8. The appeal has remained pending for nearly two years and the first
respondent contends that its activities as a Customs House Agent have remained
suspended notwithstanding the judgment and order impugned since the appeal
remained pending. The agent submits that even the matter as to the classification
of the goods has now been settled at the level of the Tribunal with the Tribunal
holding that the goods as classified by the agent was appropriate and the manner
of classification as suggested by the Revenue was inappropriate.
9. As of date, the prejudice caused by the original order of adjudication
of September 12, 2017 has been wiped clean as against the agent. In such scenar-
io, no reasonable authority could have suspended the licence of the agent or in-
stituted proceedings therefor without the order dated October 26, 2017 being
challenged or without first having such order annulled. At any rate, the entire
issue has now been resolved and at the level of the Tribunal, it has been decided
that the relevant goods in this case answered the description that was applied by
the agent in this case and not as suggested by the department. In such circum-

EXCISE LAW TIMES  1st July 2020  101