2017 (4) TMI 202 - HC - Customs

Challenge to the issuance of Show Cause notice - Validity of public notices - Held that - The petitioners have narrated the nature of their activities. They have also highlighted the role if they play at the port. They clarify that the Act applies only to those, who import the goods and desire to clear them either for export or for home consumption. If the petitioners contend that their business, their activities would not bring them within the purview of the Act of 1962, then, we do not see how by mere issuance of the SCN and addressed to them are they precluded from raising this challenge. Even if they are summoned, they can submit a written defence or, as styled in the SCN, a written statement of defence raising therein all contentions and without prejudice to the same, appear before the adjudicating authority. An opportunity of personal hearing will be given to the petitioners, at which, they or their representative can specifically argue these points and raise the above contentions. Once these clarifications have come from the authorities themselves and the learned Additional Solicitor General assures the court that no recoveries will be effected pending adjudication, then, all the more, we need not entertain these petitions. Petition allowed by way of remand.

Summary

Issues involved:
Challenging public notices related to customs regulations and jurisdiction under the Customs Act, 1962.

Analysis:
The petitioners, acting as agents for Container Shipping Lines/Carriers involved in international carriage of containerized goods by sea, challenged four public notices issued by various customs authorities. The petitioners argued that the notices, based on the Handling of Cargo in Customs Area Regulations, 2009, misinterpreted the provisions of the Customs Act, 1962. They contended that the notices contravened the Act and regulations, leading to an unfair adjudication process. The petitioners sought a writ of mandamus to withdraw the notices, claiming that the authorities' understanding of the Act and regulations hindered a fair adjudication process.

The respondents included the Union of India, Chief Commissioner of Customs, Commissioners of Customs, and other customs officials. The petitioners, represented by senior advocates, argued that the regulations did not encompass their activities as customs cargo service providers. They emphasized that the public notices and show cause notices misinterpreted the Act and regulations, leading to an unfair treatment of their activities. The petitioners approached the court under Article 226 of the Constitution of India, seeking redressal due to the authorities' misinterpretation and potential bias in the adjudication process.

The Additional Solicitor General raised a preliminary objection to the maintainability of the petitions, arguing that the challenges should be raised during the adjudication process rather than through writ petitions. The court acknowledged the objection, stating that the petitioners could raise jurisdiction and maintainability issues during the adjudication process. The court emphasized that the adjudicating authority must consider all contentions raised by the petitioners, including challenges to jurisdiction and competence, during the adjudication of the show cause notices.

Ultimately, the court disposed of the petitions, noting that the petitioners would have the opportunity to challenge the jurisdiction and competence of the authorities during the adjudication process. The court extended the time for the petitioners to furnish their statement of defense, allowing them to respond to the show cause notices within four weeks. The court clarified that no coercive recoveries would be made pending adjudication, providing assurance to the petitioners regarding the fairness of the process.