Calcutta High Court
M/S. Universal Clearing & Forwarding ... vs Union Of India & Ors on 4 March, 2015
Author: I. P. Mukerji
Bench: I. P. Mukerji
ORDER SHEET
W.P. No. 136 of 2015
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
M/S. UNIVERSAL CLEARING & FORWARDING AGENCY & ANR. Petitioners
Versus
UNION OF INDIA & ORS. Respondents
BEFORE:
The Hon'ble JUSTICE I. P. MUKERJI Date : 4th March, 2015.
For Petitioners : Mr. P.K. Datta, Sr. Adv.
with Mr. N.K. Chowdhury, Mr. Arijit Chakrabarti, Mr. Debaditya Banerjee & Mr. Nilotpal Chowdhury, Advs.
For Respondent nos.2&3 : Mr. S.B. Saraf with Mr. K.K. Maiti, Advs.
Affidavit of service is on record. Mr. Datta, learned senior advocate for the petitioners, has submitted that the learned Attorney General has been served.
This writ challenges a show cause notice dated 8th January, 2015 issued under Regulation 20(1) of Customs Brokers' Licensing Regulations, 2013. The writ petitioners have also challenged the vires of regulations 18 and 20 of these regulations.
Most interesting and important points were raised by Mr. P.K. Datta, moving this writ application.
I will only narrate a few of them.
He submitted that in the show cause notice two orders of adjudication passed by the Commissioner of Customs [Port] both dated 31st October, 2014, have been treated as the offence report.
This is against the spirit of the regulations. He shows me a circular dated 8th April, 2010 as to what would constitute the subject matter of an offence report. In short, when the department has reasons to believe that a Customs broker's license is to be revoked, there is a provision for his immediate suspension and subsequent enquiry. A report based on such enquiry is prepared on the basis of which the authorities decide whether to continue with the suspension or not. This report often becomes the subject 2 matter of a subsequent show cause notice for the revocation of license of the Customs broker. It is in the nature of a police report in connection with an alleged crime. According to Mr. Datta, if the above orders of the Commissioner are forwarded as offence reports, it amounts to pre-judging the issue and inviting the adjudicator of the show cause notice to be guided by the findings contained therein.
He also submitted that the enquiry and investigation under the regulations are conducted by a Deputy Commissioner or Assistant Commissioner. He referred to the proviso to regulation 18. He argued that the wording of the proviso meant that the investigation or enquiry had to precede an adjudication order. He argued that if this was not the case, an investigating officer much below the rank of the Commissioner would be under tremendous pressure to investigate the matter in the teeth of any adjudication order passed by the Commissioner under the Customs Act, 1962.
There were various other points raised by Mr. Datta from the writ petition. These were countered by Mr. Saraf by arguing that it was justifiable for the department to include the adjudication orders as the offence report so that the entire set of facts concerning the writ petitioner was before the adjudicator adjudicating the show cause notice under Regulation 20(1) dated 8th January, 2015. He also tried to justify investigation by the lower rank officers despite the presence of adjudication orders by the Commissioner.
As far as the merits of the dispute are concerned, it seems to be with regard to the classification of certain goods imported into our country. Import of steel strips is prohibited whereas import of metal scrap is allowed. According to the Customs Department, steel strips were being imported misdeclaring them as metal scrap. The importers are seeking to 3 justify their classification of the goods by methods known in this branch of law. The question is whether the writ petitioner, as Customs broker, had intentionally abetted violation of Indian Law by the importer or connived with him in case of such violation.
In my opinion, it is first to be established whether the goods are steel strips or metal scraps, then the question of intent or Mens Rea will arise.
I am also of the opinion that all the points that Mr. Datta has raised in this writ except the challenge to the vires to the Regulations can be raised by his client before the enquiry officer. Therefore, liberty is given to the petitioner to raise all the points already raised in the writ petition before the enquiry officer except the question regarding vires of the said regulations.
The petitioner will file a reply to show cause notice by 30th April, 2015. The respondents will be free to adjudicate on the show cause notice and make and publish their order, but they will not give effect to it and will not take steps without the leave of this Court. He will be at liberty to serve the order only upon the petitioners. Liberty is further granted to the respondents to approach this Court by way of an application in this writ to enforce the order.
This writ application is admitted.
Let affidavits be exchanged as per the following directions :
Affidavit in opposition be filed by 7th May, 2015. List this application on 10th June, 2015. Affidavit in reply may be filed in the mean time.
Certified copy of this order, if applied for, be supplied to the parties upon compliance with requisite formalities.
(I. P. MUKERJI, J.) K. Banerjee A.R. [C.R.]