Calcutta High Court
Indo Foreign (Agents) Pvt. Ltd vs Union Of India & Anr on 22 February, 2017
Author: Debangsu Basak
Bench: Debangsu Basak
ORDER SHEET
WP No. 79 of 2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
INDO FOREIGN (AGENTS) PVT. LTD.
Versus
UNION OF INDIA & ANR
BEFORE:
The Hon'ble JUSTICE DEBANGSU BASAK
Date : 22nd February, 2017.
Mr. R.K. Chowdhury,
Mr. Protyush Chatterjee, Advs.
...for the petitioner
Mr. Amitabrata Ray,
Mr. Bhaskar P. Banerjee, Advs.
...for the respondents
The Court : The petitioner assails an order passed by the Commissioner of Customs dated January 27, 2017 exercising powers under Regulation 20(2) of the Customs House Agents' Licensing Regulations, 2004.
Learned advocate for the petitioner submits that although the petitioner has an appellate forum, the petitioner seeks to move this writ petition under Article 226 of the Constitution of India on the ground that, the impugned order was passed without jurisdiction. He submits that, the Commissioner of Customs did not have the requisite jurisdiction 2 to pass the impugned order since the conditions precedent for assumption of jurisdiction under Regulation 20(2) of the Regulations of 2004 are absent. He submits that, Regulations 20(2) requires satisfaction of three conditions for the Commissioner to invoke the same. He emphasises that, the Commissioner must in appropriate cases, where immediate action is necessary, act within 15 days of the receipt of a report from the Investigating Authority. In the present case, he submits that, all such three ingredients are absent. Immediate action is not necessary since the alleged defaults are on behalf of the importer during the year 2009-10. The Commissioner has powers under Regulation 20 to revoke the licence. The immediate power of suspension of licence need not be invoked in view of absence of immediate urgency. He submits that, there is no report by an Investigating Authority to the Commissioner of Customs for him to assume jurisdiction and exercise powers under Regulations 20(2) of the Regulations of 2004. He submits that the Investigating Authority is the Directorate of Revenue Intelligence. In the present case, the Commissioner is relying upon an order in original passed with regard to the importer to be the investigating report. The Commissioner is not entitled to do so.
Learned advocate for the petitioner submits that, a show cause notice was issued on November 25, 2014. The proceedings under Regulation 20(2) of the Regulations of 2004 was taken in 2016 much after 3 the expiry of 15 days from the date of receipt of the report from the Investigating Authority, assuming there was a report by the investigating authority. Therefore the proceedings are time barred. He refers to the impugned order in which such point is taken by the petitioner. He submits that such point has not been decided correctly. Learned advocate for the petitioner relies upon 171 E.L.T. 301 (Kamal Kumar Agarwal vs. Union of India) and submits that, in similar circumstances as obtaining in the present writ petition, the suspension of licence of the Customs House was set aside.
Learned advocate for the department submits that, the order in original has to be considered as a report of the misdeeds of the petitioner. The show cause notice, which had ultimately culminated in the order in original, cannot be taken as a starting point, as the authorities were yet to decide finally on the allegations levelled against the petitioner in the show cause notice. The order in original is dated September 29, 2016 and the same was received by the respondent at Kolkata on December 19, 2016. Immediately thereafter the Authorities had invoked Regulation 20(2) of the Regulation of 2004 and had issued a temporary order of suspension. The petitioner was awarded an opportunity of hearing. After hearing the petitioner and considering the objections raised by the petitioner, the impugned order has been passed confirming the order of 4 suspension and directing proceedings for revocation of the licence to be initiated. He refers to the order in original and submits that, the petitioner has been found guilty of violation of various provisions of the Customs Act on two grounds and a panelty has been imposed. Although an appeal has been carried against the order in original, the same has not been set aside till date.
I have considered the rival contentions of the parties and the materials made available on record.
The petitioner is a customs house agent. The petitioner was involved in the import of goods as custom house agent, by diverse entities. Proceeding against the importer, including the petitioner, was initiated on the basis of Intelligence report given by the Directorate of Revenue Intelligence in respect of such imports. A show cause notice dated November 25, 2014 was issued under Section 28 of the Customs Act, 1962. It relates to import of branded glass chatons by various persons. The import was found to be made by mis-declaring the description of the imported items as well as its value and misuse of import codes. The order in original is detailed. It returns a finding of complicity by the petitioner in the transaction. It imposes penalty on the petitioner on two counts. The order in original is dated September 29, 2016 was received by the Kolkata Authorities on December 19, 2016. It had proceeded under Regulation 5 20(2) of the Regulation of 2004 immediately thereafter. No material has been produced before the Court to suggest that, the initial order of suspension under Regulation 20(2) of the Regulation of 2004 was not initiated within the stipulated period of 15 days on receipt of the order in original.
The contention of the petitioner that the order in original cannot be considered as a report of the investigating authority is without any basis. The order in original has resulted from a show cause notice issued on the basis of an intelligence report. Regulation 20(2) does not say that, apart from an intelligence report, the authorities cannot rely upon something more final such as an order in original to initial a proceedings for suspension of licence and ultimately suspend it. The order in original attaches a finality to the allegations of misdeeds against a custom house agent, if such agent is found to be complicit in the wrongdoings. The petitioner was given an opportunity to show cause to the allegations levelled. On consideration of such objections, the authority has found the petitioner to have violated diverse provisions of the Customs Act and two penalties have been imposed in respect of such violations. The order in original therefore comes within the purview of Regulation 20(2) of the Regulation of 2004 for the Commissioner to take cognizance and issue an order of suspension. Kamal Kumar Agarwal (supra) is on a fact scenario 6 which is different to the one obtaining in the present case. There the impugned order of suspension was set aside on the ground of non- adherence to the principles of natural justice. In the present case the petitioner has been allowed a reasonable opportunity of hearing before the final order of suspension was passed.
The impugned order is appealable. The petitioner has chosen not to prefer an appeal therefrom. The petitioner has chosen to approach the Writ Court. Existence of a statutory alternative remedy is not a complete bar to a person applying under Article 226 of the Constitution of India. However once a person applies under Article 226 of the Constitution of India, where there is a statutory alternative remedy available, he has to sustain his case on the basis of the parameters available for the enquiry by the Writ Court. An quasi judicial order can be set aside if it is found to be passed in violation of the principles of natural justice, unreasoned, perverse, without jurisdiction or to be in violation of the fundamental rights of the petitioner. In the present case, none of those grounds are substantiated. The order has not been demonstrated to be passed in violation of the principles of natural justice or unreasoned or perverse. The Authorities are within their jurisdiction to pass the impugned order. No right of the petitioner, for less a fundamental right, has been established to be violated by the order impugned. 7
In such circumstances, I find no merit in the present writ petition. W.P. No. 79 of 2017 is dismissed. No order as to costs.
(DEBANGSU BASAK, J.) TR/