Calcutta High Court
Fairdeal Enterprises Pvt. Ltd. & Anr vs Principal Commissioner Of Customs ... on 6 December, 2017
Author: Subrata Talukdar
Bench: Subrata Talukdar
ORDER SHEET
WP No.596 of 2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
FAIRDEAL ENTERPRISES PVT. LTD. & ANR.
Versus
PRINCIPAL COMMISSIONER OF CUSTOMS (AIRPORT & ADMN.) & ANR.
BEFORE:
The Hon'ble JUSTICE SUBRATA TALUKDAR
Date : 6th December, 2017.
Appearance:
Mr. Siddhartha Chatterjee, Adv.
Mr. Kausik Chatterjee, Adv.
Mr. Asok Bhaumik, Adv.
...for the petitioners.
Mr. Uday Sankar Battacharya, Adv.
Ms. Manasi Mukherjee, Adv.
...for the respondent.
The Court : Party/parties are represented in the order of their name/names as printed above in the cause title.
The point of challenge in this writ petition arises out of orders dated 30th July, 2017 and 24th August, 2017 passed under Regulation 19 of the Customs Regulation, 1962 (in short the '1962 Regulations').
Mr. Siddhartha Chatterjee, learned Counsel appearing for the petitioners submits that the petitioner no.1/company is a Customs Broker handling the consignments of several exporters. It is further submitted that Regulation 19 of the 1962 Regulations permits the respondents/Customs Authorities to suspend the licence of the 2 petitioner/company pending an enquiry into any violation under Regulation 18 of the 1962 Regulations or, in contemplation of an enquiry connected to such violation.
It is argued that the orders suspending the licences of the petitioner no.1/company (supra) have been issued in violation of the principles of natural justice since, the petitioner no.1/company is yet to be informed of any details necessary for defending itself in a proposed enquiry. It is pointed out that although the orders under Regulation 19(supra) are amenable to a statutory appeal, it would appear from the Circular dated 18th November, 2013 of the Customs, Excise & Service Tax Appellate Tribunal (in short 'the Tribunal') that the appeal can be only heard by a Division Bench of the Tribunal.
Since the Division Bench of the Tribunal is not available in Kolkata as on date, the remedy by way of appeal has been rendered infructuous. Therefore, since the carriage of business of the petitioner no.1/company stands fundamentally affected by the suspension of the licence, this writ petition is maintainable on both the grounds of violation of natural justice as well as the non-availability of the appropriate forum.
Further reliance is placed by learned counsel for the petitioner on the adjudication by the Tribunal at Delhi connected to the operation of the petitioner no.1/company within the Delhi Jurisdiction of the respondents/Customs Authorities under the same licence held by the petitioner no.1/company at Kolkata.
Referring to the decision of the learned Tribunal/Court No. IV dated 27th of November, 2017, Mr. Chatterjee submits that the learned Tribunal set aside the proceedings against the petitioner no.1/company on the ground of non-fulfillment of principles of natural justice. The learned Tribunal at Delhi held that the required particulars were not made available to the petitioner no.1/company nor, appear to have been examined by the Original Authority competent to issue the order of prohibition. 3
On the strength of the above recorded submissions, it is argued by the petitioners that the suspension of the licence be set aside and the petitioners be permitted to conduct their brokerage business till the proceedings, if and when any, stand completed. It is also submitted that lifting of the suspension of the licence of the petitioners would save the petitioners from the fate of forfeiture of their security deposits lying with other exporters.
On behalf of the respondents/Customs Authorities, Mr. Uday Sankar Bhattacharya, learned Counsel, produces a document to demonstrate that an enquiry under Regulation 20 of the 1962 Regulations is in process. The petitioners are free to avail of the documents and other particulars necessary for their defence in the enquiry. Mr. Bhattacharya argues that the writ petition is not maintainable on the ground of either an efficacious or, an alternative remedy.
The issue of the availability of the Division Bench of the learned Tribunal at Kolkata is not relevant for the present discussion since, according to Mr. Bhattacharya, the petitioners are first required to respond to the enquiry under Regulation 20 and on final adjudication at the enquiry, the next higher stage of challenge by way of an appeal can then arise.
Having heard the parties and considering the materials placed, this Court finds from the provisions of Regulations 19 and 20 of the 1962 Regulations (supra) that power is vested with the respondents/Customs Authorities and, particularly the Commissioner of Customs under Regulation 19, to suspend a licence in the event an enquiry is pending or contemplated.
Regulation 19(2) further provides that the suspension can be continued by the respondents/Customs in the event of further procedure of enquiry as contemplated under Regulation 20. Regulation 20, this Court observes, provides for the procedure of 4 enquiry which, to the mind of this Court, has been already undertaken by the respondents/Customs at Kolkata. From the documents produced, it transpires to this Court that the petitioners are entitled to avail of the particulars/documents sought in the enquiry itself.
In the backdrop of the above discussion, this Court finds no reason to attach more than the required attention to the issue raised by learned Counsel for the petitioners, that the non-availability of the Division Bench of the learned Tribunal of Kolkata has led to a failure of justice. To the mind of this Court, the issue of non- availability of the Division Bench of the learned Tribunal may be pertinent only after the enquiry is conducted under Regulation 20 (supra).
This Court also finds that the proviso to Regulation 19(2) permits the respondents/Customs Authorities to continue with the suspension of the licence in issue pending an enquiry under Regulation 20. This Court must further notice that the Division Bench of the learned Tribunal at Delhi has remanded the matter to the Original Authority for enquiry as contemplated by the Regulations (supra) and, such remand does not conflict with the stand taken by the respondent/Customs Authorities at Kolkata that the conduct of the enquiry is not jurisdictionally prohibited.
In the backdrop of the above discussion, the pronouncement of this Court In Re:
'Nepa Agency & Co. Pvt. Ltd. vs. Union of India' reported in 2014 SCC Online Cal 16979 :
(2014) 310 ELT 713 do not fit into the facts of this case.
Since this Court also finds this writ petition to be premature, no purpose will be served by inviting affidavits.
WP No.596 of 2017 shall stands, accordingly, dismissed.
Allegations made are deemed not to have been admitted.
5Urgent certified xerox copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(SUBRATA TALUKDAR, J.) B.Pal