Bombay High Court
East West Freight Carriers Ltd. Thru Ceo ... vs Union Of India Thru The Secretary, ... on 20 December, 2018
Author: M.S.Sanklecha
Bench: Akil Kureshi, M.S.Sanklecha
wp-14488-2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE CIVIL JURISDICTION
WRIT PETITION NO. 14488 OF 2018
East West Freight Carriers Ltd., .. Petitioner.
v/s.
Union of India & Another .. Respondents.
Dr. Sujay Kantawala with Kartik Vig, Aishwarya Kantawala and Poorva
Patil i/b. Brijesh Pathak, for the Petitioner.
CORAM: AKIL KURESHI &
M.S.SANKLECHA, JJ.
DATE : 20th DECEMBER, 2018.
P.C:-
The learned Counsel for the Petitioner stated that Respondents have been duly served. He undertakes to file affidavit of service within one week from today. Despite service, no one appeared for the Respondents.
2 The Petitioner has challenged the order dated 7/12th December, 2018 passed by the Commissioner of Customs, Mumbai, under which, he suspended the Petitioner's licence as a Customs Broker with immediate effect in exercise of powers under Regulation 16(1) of the Customs Brokers Licensing Regulation Act, 2013 (for short " Regulation") on the ground that, prima facie, Petitioner had failed to discharge the obligation laid down under relevant clauses of Regulation 11 of the said Regulations. The said authority also granted an opportunity of personal hearing to the Petitioner on 12th January, 2018.
S.R.JOSHI 1 of 3 ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:13:28 ::: wp-14488-2018 3 Regulation 16 of the said Regulations pertains to suspension
of licence. Under sub-clause (1) thereof, the Competent Authority could, in appropriate cases, suspend the license of customs broker, where immediate action is necessary and where an enquiry against such customs broker is pending or contemplated. Clause (2) of Regulation 16 of the said Regulation, requires the said authority to grant a hearing within 15 days from the date of the order of suspension and pass such order as he deems fit either by revoking the suspension order or continuing it within further 15 days from the date of hearing the Customs Broker.
4 Drawing our attention to the impugned order, the Counsel for the Petitioner pointed out that, the order of suspension is passed on one instance of the penalty order being imposed on the Petitioner by adjudicating authority under an order dated 14th December, 2017. He submitted that Appeal against such order has been filed by the Petitioner which is pending before the Appellate Authority, in which, Petitioner has made mandatory pre-deposit. He further submitted that the Commissioner of Customs, Mumbai has acted on the order of penalty passed by the adjudicating authority nearly one year later, clearly indicating lack of any need for an urgent action. Even the State of post, suspension hearing is fixed beyond 15 days envisaged in the Regulations. He further submitted that the said authority has simultaneously issued a show cause notice for permanent cancellation of the licence and given a period shorter than 30 days for responding to the same, which is contrary to the Regulations.
5 It would, prima facie, be questionable - whether the power of suspension of licence could or should have been exercised by Commissioner of Customs, Mumbai, acting upon an order of penalty S.R.JOSHI 2 of 3 ::: Uploaded on - 21/12/2018 ::: Downloaded on - 25/12/2018 22:13:28 ::: wp-14488-2018 which was passed nearly one year back. We also notice that against requirement of the post-decisional hearing within 15 days of passing the order of suspension, the Commissioner of Customs, Mumbai has fixed such hearing nearly a month later.
6 Learned Counsel for the Petitioner stated that the Petitioner is enjoying such a licence since the year 1988 and barring the order of penalty dated 14th December, 2017, there has been no other instance of penal action taken against the Petitioner.
7 Stand over to 17th January, 2019.
8 By way of ad-interim relief, impugned order of suspension of licence of the Petitioner is stayed. It is clarified that the proposed hearing scheduled on 12th January, 2019 is not disturbed.
(M.S.SANKLECHA,J.) (AKIL KURESHI,J.)
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