Calcutta High Court
M/S.Bose Enterprise & Anr vs Union Of India & Ors on 15 March, 2011
Author: Indira Banerjee
Bench: Indira Banerjee
WP No. 143 of 2010
GA No. 253 of 2011
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
M/S.BOSE ENTERPRISE & ANR
Versus
UNION OF INDIA & ORS
BEFORE:
The Hon'ble JUSTICE INDIRA BANERJEE
Date : 15th March, 2011.
Appearance:
Mr. Kallol Bose, Adv.
Mr. R. Bharadwaj, Adv.
The Court :- The writ petitioner no.1 a Custom House Agent under the
Custom House Agent Licensing Regulations, 2004 filed the writ petition
challenging an order of suspension dated 13 January, 2010. By an order dated 18
February, 2010 a Single Bench of this Court issued directions for affidavits.
Affidavits are complete. In the meanwhile, while the writ petition was pending
the Central Board of Excise and Customs issued Circular No.9/2010-Customs dated
8th April, 2010 which, inter alia, stipulates a time limit for completion of
suspension proceedings against the Custom House Agent Licence-holder.
Paragraph 7.1 and 7.2 are set out hereinbelow for convenience:
"7.1. The present procedure prescribed for completion of
regular suspension proceedings takes a long time since it involves
inquiry proceedings, and there is no time limit prescribed for
completion of such proceedings. Hence, it has been decided by the
Board to prescribe an overall time limit of nine months from the
date of receipt of offence report, by prescribing time limits at
various stages of issue of Show Cause Notice, submission of inquiry
report by the Deputy Commissioner of Customs or Assistant
Commissioner of Customs recording his findings on the issue of
suspension of CHA license, and for passing of an order by the
Commissioner of Customs. Suitable changes have been made in the
present time limit of forty five days for reply by CHA to the notice
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of suspension, sixty days time for representation against the report
of AC/DC on the grounds not accepted by CHA, by reducing the time to
thirty days in both the cases under the Regulations.
7.2. In cases where immediate suspension action against
a CHA is required to be taken by a Commissioner of Customs under
regulation 20(2), there is no need for following the procedure
prescribed under Regulation 22 since such an action is taken
immediately and only in justified cases depending upon the
seriousness or gravity of offence. However, it has been decided by
the Board that a post-decisional hearing' should be given in all
such cases so that errors apparent, if any, can be corrected and an
opportunity for personal hearing is given to the aggrieved party.
Further, Board has also prescribed certain time limits in cases
warranting immediate suspension under Regulation 20(2). Accordingly,
the investigating authority shall furnish its report to the
Commissioner of Customs who had issued the CHA license (Licensing
authority), within thirty days of the detection of an offence. The
Licensing authority shall take necessary immediate suspension action
within fifteen days of the receipt of the report of the
investigating authority. A post-decisional hearing shall be granted
to the party within fifteen days from the date of his suspension.
The Commissioner of Customs concerned shall issue an Adjudication
Order, where it is possible to do so, within fifteen days from the
date of personal hearing so granted by him".
In cases where immediate suspension is required to be taken under
Regulation 20(2), there is no need for following the procedure prescribed under
regulation 22. The board has, however, decided that in such cases a post-
decisional hearing should be given to the aggrieved party, within fifteen days
from the date of suspension. Furthermore, the investigating authority is
required to furnish its report to the Commissioner of Customs who had issued
this Customs House Agent Licence, within thirty days from the date of detection
of the alleged offence necessitating immediate suspension, and thereafter,
within fifteen days personal hearing should be given to the Custom's House
Agent. The Commissioner of Customs is, where it is possible to do so, required
to issue an Adjudication Order within fifteen days from the date of the personal
hearing.
The instructions issued by the Central Board of Excise and Customs
are binding on the Department. The time stipulations in the Circular are
apparently directory and not mandatory, as will be evident from the language and
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tenor thereof. Furthermore, the Circular does not provide for the consequences
of failure to adhere to the time schedule.
The allegations against the Customs House Agent are serious. This
Court is therefore not inclined to interfere with the suspension without giving
the authorities an opportunity to draw up and conclude proceedings against the
petitioners within a stipulated time.
There can be no doubt that a Custom House Agent cannot be kept under
indefinite suspension without initiating necessary proceedings. Necessary
proceedings would have to be initiated forthwith and concluded with utmost
expedition.
The writ application is treated as on the day's list and the same is
disposed of by directing the respondents to conclude the proceedings initiated
against the petitioner expeditiously and in any case within two months from date failing which the suspension order shall stand revoked and/or withdrawn.
Needless to mention that the respondent authorities shall give the petitioner a fair opportunity of hearing. If, however, the petitioner fails to appear in spite of adequate notice the respondents might proceed ex parte.
In view of the order passed above, the GA Application being GA No.253 of 2011 is also disposed of.
All parties are to act on a signed photostat copy of this order on the usual undertakings.
(INDIRA BANERJEE, J.) cs.