2016 (11) TMI 467 - HC - Customs

Revocation of licence - CHA - forfeiture of security deposit - Regulation 20(7) of the Customs Broker Licence Regulations, 2013 - plea of limitation and non-service of notice and orders on the petitioner - Held that - Department is able to prima facie establish that the petitioner had the knowledge of the proceedings. The petitioner had been prolonging the issue which has been recorded by the respondent in the impugned order, wherein it has been stated that the petitioner did not appear for personal hearing offered to them by the Inquiry Officer on 17.10.2014, 27.10.2014 and 28.10.2014 and did not make any oral or written submissions. Therefore, the Inquiry Officer was left with no option except to give a report based on the available records. The twin contentions raised by the petitioner in this Writ Petition challenging the impugned order namely, with regard to the plea of limitation and non-service of notice and orders on the petitioner stand rejected and both contentions are answered against the petitioner. Hence, in respect of the other factual contentions that the petitioner may raise challenging the impugned order, it is appropriate that the petitioner should invoke the appellate remedy available under the provisions of the Act. The appellate remedy available to the petitioner is before the Tribunal which is the final Court of fact. The Tribunal is empowered to re-appreciate the factual contentions and come to a correct conclusion as to whether the stand taken by the petitioner is justified or not? The Tribunal can call for and examine the records of the Department to test the correctness of the petitioner s submissions. Therefore, the petitioner has to necessarily avail the alternative remedy. The facts are seriously disputed and to consider the same, it would be necessary to adjudicate those disputed questions of fact, which obviously cannot be done in a Writ Petition and this was not permitted to be done before this Court at the very inception and that was preciously the reason for the petitioner to restrict their contentions in the Writ Petition on the above two grounds. Likewise, the counter affidavit filed by the respondent was only restricted to those two contentions raised by the petitioner. Therefore, in respect of all other contentions, which the petitioner may raise, have to be necessarily done before the Appellate Tribunal - petition dismissed - it is left open to the petitioner to avail the appellate remedy before the CESTAT raising other factual contentions other than the two contentions, which have been negatived by this Court. If the petitioner avails the alternate remedy, the CESTAT while computing limitation shall exclude the period from 01.09.2015, when the Writ Petition was presented before this Court till the receipt of the certified copy of this order - decided against petitioner.

Summary

Issues Involved:
1. Limitation in issuing the show cause notice and completing the inquiry.
2. Non-service of notices and orders on the petitioner.

Detailed Analysis:

Limitation in Issuing the Show Cause Notice and Completing the Inquiry:
The petitioner challenged the revocation of their Customs Broker licence primarily on the grounds of limitation. The petitioner argued that the show cause notice was issued well beyond the 90-day period stipulated under Regulation 20(1) of the Customs Broker Licence Regulations (CBLR), 2013. Additionally, the inquiry report was submitted after 10 months, exceeding the 90-day period from the notice issuance date. The final order was passed six months after the inquiry report, again breaching the 90-day limit.

The court examined the applicability of the CBLR, 2013, versus the Customs House Agent Licence Regulation (CHALR), 2004. It was noted that the incident occurred when CHALR, 2004, was in force, which did not prescribe specific time limits for such actions. The CBLR, 2013, came into effect on 21.06.2013, and the court held that actions initiated under CHALR, 2004, were not bound by the time limits stipulated in the CBLR, 2013. The court concluded that the proceedings were valid and not barred by limitation since they commenced under the CHALR, 2004, which did not have the same time constraints.

Non-Service of Notices and Orders on the Petitioner:
The petitioner contended that they did not receive the show cause notice, inquiry report, or other relevant communications because these were sent to their old address, despite having notified the department of their change of address in 2011. The respondent countered that the petitioner received the order of suspension and other communications at the old address, indicating that they were still operating from that location.

The court found that the petitioner had received the suspension order and other communications at the old address, and even used this address in their appeal to the CESTAT. The court accepted the respondent's argument that the petitioner was aware of the proceedings and had been adopting delaying tactics. The court rejected the petitioner's contention of non-service of notices and orders, concluding that the petitioner had knowledge of the proceedings and failed to raise the issue of the change of address in a timely manner.

Conclusion:
The court dismissed the writ petition, rejecting both grounds of challenge—limitation and non-service of notices. The court directed the petitioner to avail the appellate remedy before the CESTAT for any other factual contentions. The period from the filing of the writ petition to the receipt of the certified copy of the order was excluded from the computation of limitation for filing the appeal.