Calcutta High Court
M/S. Express Clearing Agency & Anr vs The Commissioner Of Customs (Airport on 15 December, 2017
Author: Subrata Talukdar
Bench: Subrata Talukdar
WP No.646 of 2017
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
M/S. EXPRESS CLEARING AGENCY & ANR.
-Versus-
THE COMMISSIONER OF CUSTOMS (AIRPORT
& ADMINISTRATION), KOLKATA
Appearance:
Mr. Arijit Chakrabarti, Adv.
Mr. Nilotpal Chowdhury, Adv.
...for the petitioner.
Mr. K. K. Maiti, Adv.
Ms. Aishwarya Rajyashree, Adv.
...for the respondent.
BEFORE:
The Hon'ble JUSTICE SUBRATA TALUKDAR Date : 15th December, 2017.
The Court : Party/parties are represented in the order of their name/names as printed above in the cause title.
The short question that arises in this writ petition emanates out of an original Customs Broker order no.11/2017 dated 9th October, 2017 which at paragraph 2 thereof refers to a Offence Report connected to the alleged role played by the petitioner/customs broker connected to wrongful classification of audio/music systems. Connected to the said Offence Report dated 18th August, 2014, an Order-in-original bearing the reference No.51/KOL/CUS/ADC/570/Adjn.(Port)/2017 dated 12th September, 2017 2 was issued by the Additional Commissioner of Customs (Port), Customs House, Kolkata.
Mr. Chakrabarti, learned Counsel for the petitioner, submits that the said Order-in-Original dated 12th September, 2017 was challenged in appeal and, by an order dated 26th October, 2017, (called the Order-in-Appeal) issued by the Commissioner of Customs (Appeals), Kolkata, the Original Order of suspension dated 12th September, 2017 stood set aside. In relation to the original order of imposition of penalty dated 12th September, 2017, the operative portion reads as follows:
"9. In so far as, the imposition of penalty is concerned, I do not find any involvement on the part of the appellant in the instant case and therefore imposition of penalty is not sustainable in law."
The appellate authority decided to modify the original order and set aside the order of imposition of penalty. The appeal thus, stood allowed with consequential reliefs, as follows:
"10. In view of the above discussions, I modify the order of lower authority pertaining to the imposition of penalty by setting aside the penalty imposed on the appellant."
The specific case made out by the writ petitioner for invocation of the extraordinary jurisdiction of this Court is that although the original authority being the Commissioner of Customs (Airport & Admin.), Kolkata was intimated that the Order-in- 3 Original dated 12th September, 2017 is pending in appeal and an opportunity be granted to the writ petitioner to press the order in appeal, the original order impugned dated 1st November, 2017 of the said Commissioner of Customs (Airport & Admin.), Customs House, Kolkata failed to notice the Order-in-Appeal dated 26th October, 2017 which set aside the penalty and allowed consequential reliefs.
Accordingly, the petitioner is aggrieved by the Order- in-Original dated 1st November, 2017 to the extent that the suspension of the licence of the petitioner as a customs broker is still sought to be continued although the basis of such continuation of suspension no longer exists in the light of the Order-in-Original dated 12th September, 2017 being set aside in appeal along with consequential reliefs.
Learned Counsel for the revenue/respondent/Customs argues that the next step under the Customs Brokers Licensing Regulation, 2013 (for short the 2013 Regulation) has now been taken by the original authority vide the order dated 1st November, 2017 by directing initiation of proceedings under Regulation 20 of the 2013 Regulation. Regulation 20 is ultimately directed towards consideration of the revocation of the licence of the writ petitioner in the event, the final report on enquiry is found to be substantiated vide the procedure laid down under Regulation 20 (supra).
4
Having heard the parties and considering the materials placed, this Court does not intend to detain the writ petition further on affidavits.
This Court finds merit in the submissions of the learned Counsel for the petitioner that with the Order in Appeal dated 26th October, 2017, consequential reliefs which flowed from the said Order in Appeal ought to accrue in favour of the petitioner.
On the principles of violation of natural justice, there is further merit in the argument advanced by learned Counsel for the petitioner to the extent that the original authority which passed the order of 1st November, 2017 ought to have taken into consideration the Order in Appeal dated 26th October, 2017 which was submitted by the petitioner.
Accordingly, this Court directs that the order impugned to the extent of following:-
"i) I hereby order the continuation of suspension of Customs Broker Licence No.E-19 (PAN AAAEF8775A) held by M/s.
Express Clearing Agency under Regulation 19(2) of CBLR, 2013 until further orders;" be quashed.
However, with respect to (ii) of the order impugned, it shall be open to the original authority/Commissioner of Customs (Airport & Admin.) to take steps in accordance with law, under Regulation 20 of the CBLR, 2013 if otherwise applicable. 5
Affidavits are accordingly not invited and, neither pressed for by the parties.
Allegations made are deemed to be denied.
W.P.No.646 of 2017 stands thus disposed of.
(SUBRATA TALUKDAR, J.) A/s.