Madras High Court
M/S.M.K.S.Shipping Agencies Private ... vs The Commissioner Of Customs on 15 October, 2012
Author: Vinod K.Sharma
Bench: Vinod K.Sharma
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15/10/2012 CORAM THE HONOURABLE MR. JUSTICE VINOD K.SHARMA W.P.(MD)No.12633 of 2012 and M.P(MD)No.1 of 2012 M/s.M.K.S.Shipping Agencies Private Limited, represented by Managing Director K.S.Murugan, No.26, C/1A, Kamaraj Nagar, Tuticorin - 628 008. ..Petitioner Vs The Commissioner of Customs, Custom House, New Harbour Estate, Tuticorin. ..Respondent Prayer Writ Petition filed under Article 226 of the Constitution of India, praying this Court to issue a Writ of Certiorari calling for the records pertaining to C.No.VIII/13/23/1993-CHAL(Vol.III), dated 12.09.2012 of Custom House Agents License under the provisions of Regulation 20(2) of the Custom House Agents Licensing Regulations 2004 passed by the respondent and to quash the same. !For Petitioner ...M/s.P.Saravanan ^For Respondent ...M/s.B.Vijay Karthikeyan :ORDER
The petitioner prays for issuance of a Writ in the nature of Certiorari to quash the order C.No.VIII/13/23/1993-CHAL(Vol.III), dated 12.09.2012 vide which the Custom House Agents License of the petitioner has been suspended in exercise of the Custom House Agents License Regulation 2004.
2. The learned counsel for the petitioner challenged the impugned order of suspension primarily on the ground that the authority the commissioner of customs to suspend the license is only in a case where immediate action is necessary and an enquiry is pending or contemplated.
3. It is contended that 15 days time stipulated under this rule is to be counted from the date of enquiry and not from the date of notice or receipt of report. It is also the contention of the learned counsel for the petitioner that the order of suspension is without jurisdiction, as it does not fall under Regulation 20(2) of the Act, as it cannot be said that immediate action was called for.
4. In support of this contention, the learned counsel for the petitioner placed reliance on the judgment of this Court in East west Freight Carriers(P) Limited .vs. Collector of Customs, Madras reported in 1995(77) ELT 79(Mad.) laying down that suspension of licence not sustainable unless the order indicates application of mind by Collector to the aspect whether immediate action was necessary pursuant to contravention by clearing agent. The jurisdiction to suspend is only when immediate action is necessary.
5. The reliance is also placed on the judgement in Kamal Kumar Agarwal .vs. Union of India reported in 2004(171)ELT 301(Cal) laying down that alternative appellate remedy cannot be a bar to maintainability of the Writ Petition when the action is arbitrary, mala-fide and passed in breach of principles of natural justice, thereby infringing fundamental rights.
6. The reliance was further placed on a judgment of the Honourable Delhi High Court in Rajinder Kumar Goyal .vs. Collector of customs reported in 1995(79) ELT 54(Del).
7. The Writ petition is opposed by the learned counsel for the respondent, on the ground that this Writ Petition is not competent as the petitioner has alternative remedy of appeal under Regulation 20(2) of the Act.
8. In support of this contention,the learned counsel for the respondent placed reliance on Regulation 22 which reads as under:
"22. Procedure for suspending or revoking licence under Regulation 20.--
1. The Commissioner of Customs shall issue a notice in writing to the Customs House Agent stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said customs House Agent to submit, within such time as may be specified in the notice, not being less than forty five days, to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said Deputy Commissioner of Customs or Assistant Commissioner of Customs.
2. The Commissioner of Customs may, on receipt of the written statement from the Customs House Agent, or where no such statement has been received within the time limit specified in the notice referred to in sub-regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs to inquire into the grounds which are not admitted by the Customs House Agent.
3. The Deputy Commissioner of Customs or Assistant Commissioner of Customs shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings and he may also put any question to any person tendering evidence for or against the customs House Agent, for the purpose of ascertaining the correct position.
(4)The Customs House Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing.
(5). At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings.
(6) The Commissioner of Customs shall furnish to the Customs House Agent a copy of the report of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, and shall require the Customs House Agent to submit, within the specified period not being less than sixty days and representation that he may wish to make against the findings of the Deputy Commissioner of Customs or Assistant Commissioner of Customs.
7. The Commissioner of Customs shall, after considering the receipt of the inquiry and the representation thereon, if any, made by the Customs House Agent, pass such orders as he deems fit.
(8) Any Customs House Agent aggrieved by any decision or order passed under regulation 20 or sub-regulation (7) of the regulation 22, may prefer an appeal under Section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under Sub-Section (1) of Section 129 of the Act.
9. The learned counsel for the respondent in support of this placed reliance on the judgment of this Court in the case of M/s.Cargomar .vs. The Commissioner of Central Excise and others made W.P.Nos. 5663 and 7126 of 2006 and W.P.M.P.Nos. 6141 and 7790 of 2006, laying down as under:
17. Therefore as per the law laid down by the Honourable Supreme Court of India in the above decision, pre-decisional natural justice issue of a show cause notice is not usually contemplated when the orders passed are of an interim nature pending investigation or enquiry. Hence in the light of the legal principles laid down in 1984(3) SCC 465 and in view of the availability of an effective alternative remedy by way of an appeal under Regulation 22(8) of the CHALR 2004 read with the provisions of the Customs Act, it is always open to the petitioner either to prefer an appeal to the Appellate Authority or make an adequate representation to the respondents, who passed the impugned orders and if such a representation is made, a post decisional opportunity can be given to the petitioner to satisfy the principles of natural justice. The petitioner being an aggrieved party can make an appropriate representation seeking a review of the impugned order and asking the concerned respondent to rescind or modify the order and if such a representation is made by the petitioner the concerned respondent in the above writ petitions shall consider such representation in accordance with law and pass orders on merits within a period of two weeks from the date of the representation after giving an opportunity of hearing to the petitioner, if the petitioner chooses to file any appeal against the impugned orders it is open to the petitioner to file the appeals within a period two weeks from the date of receipt of a copy of this order and if the petitioner files the appeals, the Appellate Authority shall entertain the appeals without reference to the period of limitation prescribed under the CHALR 2004, read with the provisions of the Customs Act. It is open to the petitioner to seek appropriate interim orders before the Appellate Authority.
The impugned orders shall remain suspended till the filing of the appeals by the petitioner within the above said stipulated time.
18. In view of the above view taken by this Court, the other contentions relating to the merits of the case are not considered. With the above directions, the writ Petitions are disposed of. No costs. Consequently, the connected WPMPs are closed.
10. This Court is bound by the decision of this Court in M/s.Cargomar .vs. The Commissioner of Central Excise and others cited supra. The Writ Petition is accordingly disposed of in same terms.
11. Consequently,connected Miscellaneous Petition is closed. No costs.
vsn To The Commissioner of Customs, Custom House, New Harbour Estate, Tuticorin.