2016 (4) TMI 922 - HC - Customs

Suspension of CHA licence - Passed within a short time of the licensing authority being made aware of the order of February 26, 2016 - Nothing contrary demonstrated by the petitioner - Held that - if the licence had been suspended or revocation proceedings had been initiated prior to the order of February 26, 2016 (in the event the licensing authority was aware of such proceedings), there may have been some basis to the petitioner asserting that the licensing authority was attempting to prejudge an issue pending consideration before an appropriate authority. In this case, the order of suspension has been passed within a short time of licensing authority being made aware of the proven misconduct on the part of the petitioner as established by the order of February 26, 2016. Since an order of suspension of a Customs broker licence may be passed under the said Regulations without affording the broker any previous opportunity to explain his perceived misconduct, the invocation of this extraordinary jurisdiction cannot be seen to be on the ground of the breach of the principles of natural justice. Further, since the order impugned is founded on the basis of a previous order holding the petitioner guilty of abetting his client in an illegal import transaction, the order of suspension cannot be seen to be completely without basis that would shock the conscience of the court. Alternate remedy of appeal - Held that - since the challenge in the petition is not founded on any of the grounds that may excite the court to disregard the alternative remedy available to the petitioner, the merits of the petitioner s challenge to the impugned order cannot be gone into. It must also be emphasised that the alternative remedy that was available to the petitioner was the post-decisional hearing as an appeal from an order of suspension ought, ordinarily, not to be entertained since such order does not attain any degree of conclusivity before a subsequent order is passed after the post-decisional hearing. The present essay of the petitioner is misconceived and ill advised. In any event, the petitioner ought to have participated at the post-decisional hearing since no order was passed on this petition preventing the petitioner from so doing or keeping the post-decisional hearing in abeyance. If the petitioner has participated in the post-decisional hearing, the concerned Principal Commissioner will pass an order within 15 days hereof without being influenced by this order. If the petitioner has chosen not to participate at the post-decisional hearing, the Principal Commissioner will take necessary steps in accordance with law without affording the petitioner any further opportunity of hearing. - Decided against the petitioner

Summary

Issues Involved:
1. Jurisdiction of the licensing authority to suspend the petitioner's Customs broker license.
2. Compliance with procedural regulations for suspension.
3. Necessity and immediacy of the suspension order.
4. Availability and efficacy of alternative remedies.
5. Adherence to principles of natural justice.

Issue-wise Detailed Analysis:

1. Jurisdiction of the Licensing Authority:
The petitioner challenged the suspension of their Customs broker license, alleging that the order was without jurisdiction. The court held that the licensing authority had due authority to issue the suspension order. The court emphasized that when an alternative remedy is available, the petition may not be entertained unless the action is palpably without jurisdiction or in absolute breach of natural justice principles.

2. Compliance with Procedural Regulations:
The petitioner argued that the suspension did not comply with Regulations 19 and 20 of the Customs Brokers Licensing Regulations, 2013. The court noted that Regulation 19(1) allows for suspension if immediate action is necessary and an inquiry is pending or contemplated. The court found that the licensing authority's contemplation of an inquiry under Regulation 20(2) was valid and that the suspension order was not without jurisdiction.

3. Necessity and Immediacy of the Suspension Order:
The petitioner contended that the suspension was not contemporaneous with the alleged misconduct and lacked immediate necessity. The court observed that the suspension was issued shortly after the licensing authority received the order of February 26, 2016, which held the petitioner guilty of misconduct. The court concluded that the immediate need for suspension was evident from the proven misconduct and that the licensing authority's perception of necessity must be accepted unless palpably absurd.

4. Availability and Efficacy of Alternative Remedies:
The petitioner claimed that the alternative remedy of a post-decisional hearing was inefficacious and that the appellate remedy was unavailable due to the absence of a judicial member at the tribunal. The court held that the post-decisional hearing provided under Regulation 19(2) was a valid alternative remedy. The court emphasized that an appeal against a suspension order should not be entertained unless the order is demonstrably without jurisdiction or patently absurd.

5. Adherence to Principles of Natural Justice:
The petitioner argued that the suspension order breached natural justice principles. The court noted that since the suspension order was based on a prior order proving the petitioner's misconduct, it could not be seen as completely without basis. The court also stated that the post-decisional hearing provided an opportunity to address any perceived breach of natural justice.

Conclusion:
The court dismissed the petition, finding no merit in the petitioner's challenges. The court directed the petitioner to participate in the post-decisional hearing and allowed the Principal Commissioner to proceed with the necessary steps based on the petitioner's participation. The petitioner was ordered to pay costs to the department.

Final Orders:
WP 350 of 2016 was dismissed, and the petitioner was ordered to pay costs assessed at 3000 GM. Urgent certified website copies of the judgment were permitted subject to compliance with requisite formalities.