2016 (10) TMI 263 - HC - Customs

Pre-meditation of Commissioner of Customs - the Commissioner of Customs already made up his mind to revoke the licence of the petitioner - Regulation 20 of the Regulations - Procedure for revoking licence or imposing penalty - Held that - Perusal of the show cause notice dated 31.08.2016 does not create an impression that there is any pre-meditated determination by the Commissioner of Customs. The Commissioner of Customs has put the petitioner to notice and has given an opportunity to the petitioner to produce evidence and also complies with the principles of natural justice in as much as it offers an opportunity of a personal hearing Inquiry report - inquiry not conducted - appointment of an inquiry officer - Held that - In terms of Regulation 20(1) Regulations, the Commissioner of Customs is to appoint a Deputy Commissioner of Customs or Assistant Commissioner of Customs, who is subordinate authority to the Commissioner of Customs - contention of the petitioner that the higher authority has appointed a junior authority as an inquiry officer, also not sustainable. Petition dismissed - decided against petitioner.

Issues:
1. Impugning show cause notice for pre-meditation by Commissioner of Customs.
2. Compliance with principles of natural justice in issuance of show cause notice.
3. Appointment of Inquiry Authority and fairness of the process.
4. Allegation of appointing a junior authority as an inquiry officer.

Analysis:
1. The petitioner challenged the show cause notice dated 31.08.2016, alleging pre-meditation by the Commissioner of Customs in paragraph 26. The petitioner argued that the Commissioner had already decided to revoke the license without conducting any inquiry. Citing legal precedents, the petitioner contended that a writ petition is maintainable if a notice is issued with pre-meditation. However, the respondents clarified that no inquiry had been conducted yet, and the notice was issued under Regulation 20(1) of the Customs Brokers Licensing Regulations, 2013.

2. The petitioner relied on legal judgments emphasizing the importance of providing all charges at the show cause notice stage to enable the person to defend themselves effectively. The show cause notice must convey an impression of a fair opportunity to rebut the allegations and prove innocence. However, the court found that the show cause notice in question complied with Regulation 20(1) by stating the grounds for proposed action and granting the petitioner an opportunity to present their defense and request a personal hearing.

3. The appointment of an Inquiry Authority, as per paragraph 25 of the show cause notice, raised concerns about fairness. The notice directed the Inquiry Authority to submit a report within 90 days, appointing an Assistant Commissioner of Customs as the Inquiry Officer. The court noted that the appointment of a subordinate authority as an inquiry officer was in line with Regulation 20(1) of the Regulations, and the process did not indicate any bias or unfairness.

4. The petitioner's claim regarding the appointment of a junior authority as an inquiry officer was dismissed as the appointment of a Deputy Commissioner of Customs or Assistant Commissioner of Customs, as a subordinate authority, was in accordance with Regulation 20(1) of the Regulations. The court found no merit in the petitioner's contentions and dismissed the petition, ruling that the show cause notice did not indicate pre-determination by the Commissioner of Customs and provided adequate opportunity for the petitioner to present their case.

In conclusion, the court upheld the validity of the show cause notice and dismissed the petition, emphasizing that the notice complied with the principles of natural justice and regulatory requirements.

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