Kerala High Court
M/S.Accrete Shipping Services vs The Commissioner Of Customs on 11 November, 2020
Author: A.K.Jayasankaran Nambiar
Bench: A.K.Jayasankaran Nambiar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
WEDNESDAY, THE 11TH DAY OF NOVEMBER 2020 / 20TH KARTHIKA, 1942
WP(C).No.20527 OF 2020(M)
PETITIONER:
M/s.ACCRETE SHIPPING SERVICES
PLOT NO.27 A/2, UNITY HOUSE, CPEO BUILDING, INDIRA
GANDHI ROAD, WILLINGTON ISLAND, COCHIN-682003,
REPRESENTED BY ITS MANAGING PARTNER, SRI. MANO KUMAR
P.S.
BY ADVS.
SRI.M.BALAGOPAL
SMT.R.DEVIKA (ALAPPUZHA)
RESPONDENT:
THE COMMISSIONER OF CUSTOMS,
CUSTOMS HOUSE, WILLINGTON ISLAND, COCHIN-682009.
BY SRI.THOMAS MATHEW NELLIMOOTTIL, SC, CENTRAL BOARD OF
EXCISE & CUSTOMS
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
11.11.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C).No.20527 OF 2020(M) 2
JUDGMENT
The petitioner, who is a Customs Broker licensed under the Customs Brokers Licensing Regulations, 2018, is before this Court impugning Ext.P9 order of the respondent that ordered the revocation of the license issued to him under the aforesaid Regulation, and imposed a penalty of Rs.50,000/- on him under the same Regulation. In the Writ Petition, it is the case of the petitioner that, while in terms of the regulation the respondent had appointed an Enquiry Officer to look into the aspects contained in the notice issued to the petitioner after considering the reply of the petitioner to the said notice, and the Enquiry Officer had submitted a report before the respondent in favour of the petitioner, the respondent, thereafter, proceeded to disagree with the findings of the Enquiry Officer and pass an order adverse to the interests of the petitioner. The contention in the Writ Petition is essentially that if the respondent wanted to disagree with the findings of the Enquiry Officer, then the notice issued to the petitioner in that regard should have clearly indicated that the respondent was proposing to disagree with the findings of the Enquiry Officer, and proceed against the petitioner in accordance with the proposal in the show cause notice WP(C).No.20527 OF 2020(M) 3 initially issued to him.
2. Through a counter affidavit and an additional counter affidavit filed on behalf of the respondent, while the sequence of events leading to the passing of the impugned order is detailed, it is not disputed that, prior to the passing of the impugned order, the notice issued to the petitioner did not contain a proposal of the respondent disagreeing with the findings of the Enquiry Officer. In other words, there is nothing in the counter affidavit that would suggest that the respondent had issued a notice to the petitioner proposing not to accept the findings of the Enquiry Officer and to proceed against the petitioner based on the allegations raised in the show cause notice issued to him.
3. I have heard Sri.Balagopal.M, the learned counsel for the petitioner and Sri.Thomas Mathew Nellimoottil, the learned Standing counsel for the respondent.
On a consideration of the facts and circumstances of the case and the submissions made across the Bar, and taking note of the judgments of this Court relied on by the learned counsel for the petitioner, I am of the view that Ext.P9 order passed by the respondent cannot be legally WP(C).No.20527 OF 2020(M) 4 sustained. When an Enquiry Report is furnished before the respondent in proceedings under the Customs Brokers Licensing Regulations, 2018 and the Enquiry Report is in favour of the petitioner, then the notice subsequently issued by the respondent ought to have indicated very clearly as to whether the respondent was proposing to accept the Enquiry Report or not accept the same. Only such a notice would have indicated to the petitioner the future course of action proposed against him by the respondent. Inasmuch as there was no notice issued to the petitioner, whereby the respondent indicated that he was not ready to accept the Enquiry Officers Report, the petitioner cannot be faulted for having assumed that the Enquiry Report that was in his favour would be accepted by the respondent. The respondent not having issued a notice on the lines indicated above, I am of the view that Ext.P9 order passed by the respondent has taken the petitioner by surprise and to that extent it is in gross violation of the rules of natural justice. I therefore, quash Ext.P9 order and direct the respondent to pass a fresh order after issuing a notice to the petitioner giving the reasons as to why the respondent proposes not to accept the findings of the Enquiry Officer in Ext.P5 Report. The petitioner shall, thereafter, be afforded an opportunity to reply to the said notice and also be extended an opportunity for personal hearing, before the respondent proceeds to pass a fresh order as directed in this judgment. The respondent shall pass the WP(C).No.20527 OF 2020(M) 5 fresh order within a period of three months from the date of receipt of a copy of this judgment.
Sd/-
A.K.JAYASANKARAN NAMBIAR JUDGE mns WP(C).No.20527 OF 2020(M) 6 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE LICENSE NO.277 DATED 11/03/2013. EXHIBIT P2 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 09/12/2019. EXHIBIT P3 TRUE COPY OF THE POSTAL ENVELOPE DATED 13/12/2019. EXHIBIT P4 TRUE COPY OF THE REPLY DATED 09/01/2020. EXHIBIT P5 TRUE COPY OF THE INQUIRY REPORT DATED 05/03/2020. EXHIBIT P6 TRUE COPY OF THE RESPONDENT'S LETTER DATED 11/03/2020. EXHIBIT P7 TRUE COPY OF PETITIONER'S REPRESENTATION DATED 15/04/2020.
EXHIBIT P8 TRUE COPY OF HEARING NOTICE DATED 15/07/2020. EXHIBIT P9 TRUE COPY OF ORDER NO.11/2020 DATED 26/09/2020. EXHIBIT P10 TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT OF KERALA REPORTED IN 2015(315)ELT 542(KER). EXHIBIT P11 TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT OF DELHI REPORTED IN 2016(334) ELT262 (DEL). EXHIBIT P12 TRUE COPY OF THE JUDGMENT OF HON'BLE HIGH COURT OF MADRAS 2019 (368) ELT 374 (MAD).
RESPONDENTS EXHIBITS:NIL //TRUE COPY// P.A TO JUDGE