Suspension of CHA licence - redressals provided in regulation 21 of CBLR, 2013 by way of filing appeal before CESTAT is efficacious alternative remedy - Court ought not to exercise its extraordinary power: HC
By TIOL News Service
KOLKATA, JUNE 22, 2015: THE petitioner is a Customs broker.
The case pertains to smuggling of cigarettes into India by way of concealment inside a container declared to be containing dining sets. 610 cartons of cigarettes of Indonesian origin having estimated value of Rs. 4.35 crores were found concealed behind 80 dining sets.
By an order dated 25th July 2013 the Commissioner of Customs (Airport and Administration), Calcutta suspended the operation of the Customs brokers licence with immediate effect.
Inquiry was conducted and the suspension of licence was confirmed by an order dated 11th September 2013.
The suspension was challenged before the High Court on the ground that there was a breach of the principles of natural justice.
The High Court by its order dated 4th August 2014 directed the Commissioner of Customs to review the suspension order by giving an opportunity to the petitioner-company to be heard and to contradict the Section 108 statements.
Pursuant to the hearing, by an order dated 25th November 2014, the Commissioner of Customs confirmed the earlier order suspending the licence in terms of Regulation 19 (2) of the CBLR, 2013 and also confirming the proceedings already initiated for revoking the licence of the petitioner company under regulation 20 of the 2013 regulations.
This order is now challenged in the writ petition.
Apart from submitting that the statements of Manoj Baid were relied upon by the department but Mr. Baid was not offered for cross-examination and this amounted to blatant violation of principles of natural justice, the petitioner also argued that there has been violation of regulation 20 of the CBLR, 2013 inasmuch as -
+ The offence report was received by the respondent authorities on 11th July, 2013. However, the show cause notice was issued on 11th February, 2014 that is much beyond 90 days from the date of receipt of offence report and hence the show cause notice and all proceedings pursuant thereto are bad in law. [A.M. Ahamed & Co. - 2014-TIOL-1503-HC-MAD-CUS refers]
+ Period of 90 days specified in regulation 20 is mandatory and not directory and any proceeding initiated by way of issuance of notice beyond the period of 90 days from the date of receipt of offence report will stand vitiated.
The counsel for the Revenue inter alia submitted that Mr. Manoj Baid was duly given notice to appear in the proceeding but he failed to turn up; in fact, he disappeared from the scenario altogether and that the period of 90 days mentioned in regulation 20 of the CBLR, 2013 is only directory and issuance of notice beyond the period of 90 days from the date of receipt of offence report does not render the proceedings bad. Availability of an efficacious alternative remedy in terms of regulation 21 of the CBLR, 2013 was also emphasised. Reliance is also placed on the decision in Guwahati Carbon Ltd. - 2012-TIOL-119-SC-CUS.
The decisions in M/s. Kanungo & Co. - 2002-TIOL-252-SC-CUS-LB. & A.S. Motors Pvt. Ltd. Civil Appeal No. 1517 of 2013 (arising out of SLP (C) No. 2490 of 2008) were relied upon in the context of 'principles of natural justice'.
The High Court observed -
+ Prima facie, I do not find any patent illegality on the face of the order impugned or that principles of natural justice have been violated in any manner.
+ Where right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of. [Titaghur Paper Mills Co. Ltd.-vs.-State of Orissa (1983) 2 SCC 433]
+ High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious alternative remedy is available, the High Court would not normally exercise its jurisdiction. [Whirlpool Corporation-vs.-Registrar of Trade Marks reported in (1998) 8 SCC 1]
+ The Customs law is a complete code by itself. The Customs Act and the rules and bye-laws framed thereunder constitute a comprehensive and exhaustive code. The impugned order in the instant case has been passed by the Commissioner of Customs in exercise of his power under the Customs Brokers Licensing Regulations, 2013 which are framed under Article 146 (2) of the Customs Act, 1962. Regulation 21 provides that a Customs Broker who is aggrieved by any order passed by the Commissioner of Customs under the said regulations may prefer an appeal under Section 129A of the Customs Act to the Customs, Central Excise and Service Tax Appellate Tribunal. The appeal as provided for, in my opinion, is an efficacious alternative remedy available to an aggrieved broker like the writ petitioner. Indeed, I am of the view that the appeal is a more comprehensive remedy.
+ In view of existence of the aforesaid alternative remedy, I am of the view that this Court ought not to exercise its extraordinary power under Article 226 of the Constitution of India.
Accordingly, the Writ Petition was dismissed.
(See 2015-TIOL-1476-HC-KOL-CUS)
