Page 183 - ELT_1st July 2020_Vol 373_Part 1

2020 ] COMMISSIONER OF CUSTOMS, CHENNAI v. FREIGHT FIELD (MADRAS) PVT. LTD. 93

20. The contention of the Learned Counsel for the petitioner assessee that
the ‘adjudication procedure’ provided in Section 122A of the Act namely of
giving an opportunity of hearing if the party so desires is also without any
merit as the said provisions of Section 122A of the Act contained in Chapter
XIV dealing with the ‘Confiscation of Goods and Imposition of Penalties’
does not deal with a contingency like “prohibition” under Regulation 23
quoted above. Therefore, the procedure provided in Section 122A of the Act
in Chapter XIV cannot be imported and read into the Regulation 23 as con-
tended.
21. On the other hand, this Court is of the opinion that the nature of order
passed under Regulation 23 with a non-obstante clause therein is a more se-
rious and drastic provision to check and prevent with immediate effect the
on going illegal activities by the Customs Brokers. That is why an overrid-
ing and pervasive power has been conferred upon the Learned Commis-
sioner of Customs to immediately prohibit any Customs Brokers from
working in one or more Sections of the Customs Station if he finds that the
Customs Broker has not fulfilled his obligations as laid down in Regulation
11 which inter alia lays down several obligations contained in Clauses (a) to
(o) of Regulation 11 and as submitted at bar by the Learned Counsel for the
Revenue. Clause 11(e) inter alia enjoins upon the Customs Broker to exercise
due diligence to ascertain the correctness of any information which he im-
parts to a client with reference to any work related to clearance of cargo or
baggage. Therefore, the Customs Broker cannot completely disentangle
himself or distance himself from the misdeclaration made on behalf of the
importers or by the importers themselves. While working under these Reg-
ulations, he undoubtedly acts as an agent of the Importer and his acts bind
the Importer as the Principal. The purposes of these Regulations are obvi-
ously to prevent evasion of custom duties and illegal activities and declara-
tions to evade duties to be checked and various consequences in these Reg-
ulations have been provided for including “prohibition” from functioning,
suspension of licence which is India-wide permission or even cancellation
thereof. Regulation 23 does not in its own terms provide for any temporary
or permanent prohibition. The said prohibition by the terms of Regulation
23 can continue even for an indefinite period. While the suspension and
revocation of licence completely bar and ban the business of the Customs
Brokers on all-India basis, the “prohibition” under Regulation 23 may have
the effect only for a particular Section or Sections of the particular territorial
jurisdiction of the Customs Station. The non obstante provisions of Regula-
tion 23 to prohibit a Customs Broker from working in any Section of the
particular territory of Customs Department, appears to have been enacted
to put in place the effective measures against the illegal activities and eva-
sion of duties and that is why the procedure of giving of a prior notice and
opportunity of hearing appears to have not been deliberately provided for
in the said Regulation 23. Nonetheless, the remedial measure to an ag-
grieved person is provided for in the Scheme of the Act and Regulation 21
itself.
22. Therefore, this Court is of the clear opinion that even the orders
passed under Regulation 23 of ‘Regulations of 2013’ are appealable under
Section 129A of the Act read with Regulation 21 of the 2013 Regulations.
23. It goes without saying that the Departmental Authorities including the
Appellate Authorities and also the CESTAT under Section 129A of the Act
are better equipped and manned with experts in the field to measure the
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