2019 (9) TMI 1168 - HC - Customs

Suspension of Importer Exporter Registration granted to the petitioner (IEC) - Section 8(1)(a)(b) of the Foreign Trade (Development and Regulation) Act, 1992 read with Foreign Trade (Development and Regulation) Amendment Act, 2010 - HELD THAT - There is no dispute to the fact that the petitioner was issued with a Certificate of Importer Exporter Code bearing No.0402001630 dated 16.04.2002. Section 8 of the Foreign Trade (Development and Regulation) Act, 1992 makes it clear that such suspension or cancellation of IEC can be made, after giving a notice to that person in writing, informing him of the grounds, on which it is proposed to cancel or suspend IEC Code Number and after giving a reasonable opportunity of making a representation in writing within such reasonable time - Thus, it is evident that the suspension or cancellation of the IEC cannot be done without putting the concerned person on notice and providing him an opportunity of hearing. No doubt, the first respondent has stated that he ordered the suspension in view of the report submitted by the CBI and on going investigations thereof.The above statement of the first respondent in the impugned order lacks any material details and particulars to support the order of suspension. Needless to say that the Licensing Authority, if intends to suspend or cancel the license, should state specific details and particulars as to the reasons which made him to take such action. In the absence of any such finding or reason, such order cannot be sustained. This Court is inclined to interfere with the impugned order only on the reason that it does not disclose, reflect or finding for suspending the IEC of the petitioner - Therefore, the matter needs to go back to the first respondent once again for passing a speaking order - petition allowed by way of remand.

Summary

Issues Involved:
1. Legality of the suspension of the Importer Exporter Code (IEC) of the petitioner.
2. Adequacy of the reasons provided in the impugned order for the suspension of the IEC.
3. Right to a fair hearing and procedural fairness in the suspension process.
4. Availability and requirement of exhausting alternative appellate remedies.

Issue-wise Detailed Analysis:

1. Legality of the Suspension of the Importer Exporter Code (IEC):
The petitioner challenged the order dated 08.08.2019 by the first respondent, which suspended the Importer Exporter Registration granted to the petitioner under Section 8(1)(a)(b) of the Foreign Trade (Development and Regulation) Act, 1992, read with the Foreign Trade (Development and Regulation) Amendment Act, 2010. The suspension was based on allegations of illegal imports of bulk drugs from unregistered manufacturing facilities in China. The petitioner argued that the suspension was unjustified and lacked proper reasoning.

2. Adequacy of the Reasons Provided in the Impugned Order:
The petitioner contended that the impugned order was a non-speaking order as it did not provide specific reasons or findings for the suspension. The court noted that the first respondent's order merely mentioned the perusal of internal communications and the ongoing CBI investigation without detailing specific reasons for the suspension. The court emphasized that an order of suspension must contain specific details and particulars to support the action taken. The absence of such details rendered the order unsustainable.

3. Right to a Fair Hearing and Procedural Fairness:
The petitioner was issued a show cause notice on 15.05.2019 and attended a personal hearing on 17.05.2019. However, the order suspending the IEC was passed on the same day as the personal hearing, without providing sufficient time for the petitioner to respond adequately. The court had previously set aside the initial suspension order dated 17.05.2019, directing a fresh personal hearing and a reasoned order. Despite this, the subsequent order dated 08.08.2019 also lacked specific reasons, violating the principles of natural justice and procedural fairness.

4. Availability and Requirement of Exhausting Alternative Appellate Remedies:
The respondents argued that the petitioner had the right to appeal the suspension order under Section 15 of the Foreign Trade (Development and Regulation) Act, 1992, and thus, the writ petition was not maintainable without exhausting the statutory remedy of appeal. However, the court found that the impugned order's lack of reasoning justified judicial intervention without requiring the petitioner to exhaust alternative remedies.

Conclusion:
The court allowed the writ petition, setting aside the impugned order dated 08.08.2019 due to the lack of specific reasons and findings. The matter was remitted back to the first respondent to pass a speaking order on merits and in accordance with the law within four weeks. The court reiterated that an order must stand or fall based on the reasons stated therein and not on subsequent pleadings or counter-affidavits. The connected miscellaneous petition was also closed.