2017 (4) TMI 17 - HC - Customs

Suspension of CHA licence - Regulation No. 19(2) of the Customs Broker Licensing Regulations, 2013 - attempt to clear consignments in order to avail inadmissible drawback - post decisional opportunity of being heard provided to petitioner - the petitioner submitted that the impugned orders are erroneous and the correctness of the same may be examined by this Court, without relegating the petitioner to invoke the appeal remedy - whether the respondent was justified in suspending the petitioner s licence invoking the power under Regulation 19(1) of the Regulations, when the Principal Commissioner of Customs, Mumbai had forwarded his order, dated 13-4-2016, for necessary action under Regulation 20 and/or 22 of the Regulations? - Whether the respondent was right in continuing the order of suspension after affording an opportunity to the petitioner in terms of Regulation 19(2) of the Regulations? Held that - It may be true that the Principal Commissioner of Customs, Mumbai, communicated his order dated 13-4-2016, to the respondent for necessary action in terms of Regulation No. 20 and/or 22 of the Regulations. According to the respondent, the order should have read as Regulations 19 & 20 and not Regulations 20 & 22 and it is a typographical error - Be that as it may, the order passed by the Principal Commissioner of Customs, Mumbai is not an order empowering the respondent to initiate action under the Regulations. The power to suspend a Customs Broker Licence is conferred on the respondent in terms of the Regulations. Therefore, even if the Commissioner of Customs, Mumbai, has not referred to any of the provisions of the Regulations, yet, the respondent was well within his jurisdiction to exercise all powers under the Regulations. Therefore, quoting of Regulation No. 20 or 22 is of no consequence and that can hardly be a ground to test the correctness of the impugned order. Therefore, such contention raised by the petitioner stands rejected. The dismissal of one of the employees of the petitioner does not grant immunity to the petitioner from the alleged offence and that the order suspending the petitioner s Customs Broker Licence was passed on 5-5-2016, immediately after the order of the Principal Commissioner of Customs, Mumbai was received by the office of the respondent on 22-4-2016 - The order impugned is a speaking order and no error can be attributed to the same. The reasons assigned are cogent and therefore, this Court does not propose to interfere with the exercise of the power of licensing authority under Regulation No. 19. Petition dismissed - decided against petitioner.

Summary

Issues:
Challenge to order-in-original suspending Customs Broker Licence under Regulation 19(2) of Customs Broker Licensing Regulations, 2013.

Analysis:
1. The petitioner challenged the order-in-original suspending their Customs Broker Licence based on an offence report alleging inadmissible drawback claims on export consignments. The Principal Commissioner of Customs, Mumbai, passed an order prohibiting the petitioner from working and directed them to surrender customs passes. The respondent then suspended the licence under Regulation 19(1) and continued the suspension post a personal hearing, leading to the writ petition.

2. The petitioner argued that the respondent erred in passing the suspension order under Regulation 19(1) instead of 20 or 22, leading to a miscarriage of justice. They contended that the suspension beyond 90 days was void and unnecessary, citing cases from Calcutta and Delhi High Courts to support their stance. The respondent defended the legality of the suspension, citing pending enquiries and the need for immediate action under Regulation 19(1).

3. The High Court analyzed the issues of suspension under Regulation 19(1) and the continuation of suspension post personal hearing under Regulation 19(2). It noted typographical errors in the Principal Commissioner's order but upheld the respondent's jurisdiction to suspend the licence based on pending enquiries and immediate action necessity, rejecting the petitioner's contentions.

4. The Court emphasized the discretion of the Commissioner to suspend a licence under Regulation 19, considering pending enquiries and revenue interests. It referenced previous judgments to support the respondent's decision, highlighting the importance of immediate action and the authority's perception of necessity in such cases.

5. Ultimately, the Court dismissed the writ petition, directing the respondent to proceed with further action under Regulation 20 within four months. It upheld the respondent's decision to suspend the licence, emphasizing the cogency of reasons provided and declining to interfere with the licensing authority's exercise of power under Regulation 19.

Conclusion:
The High Court dismissed the writ petition challenging the suspension of the Customs Broker Licence, affirming the respondent's authority under Regulation 19(1) and the continuation of suspension post personal hearing. The Court emphasized the importance of pending enquiries, immediate action necessity, and the licensing authority's discretion in such matters, upholding the legality of the suspension and directing further action under Regulation 20 within a specified timeframe.