2020 (1) TMI 285 - HC - Customs

Revocation of CHA License - time limitation for issuance of Offence Report - It is the contention of the petitioner that the show cause notice was issued beyond the period of 90 days of the offence report and thus contrary to the Regulation 20 (1) of Custom House Agent Licensing Regulations, 2004 and was therefore time barred - Regulation No. 20 (1) of the Customs Brokers Licensing Regulations, 2013 - HELD THAT - The petitioner had challenged another show cause notice dated 6.9.2017 issued to the petitioner. The said writ petition was withdrawn as was recorded in the order - dismissal of the writ petition after recording the willingness of the petitioner to participate in the said show cause proceeding dated 6.9.2017 is of no relevance. As per Regulation 20 (1) the show cause notice has to be issued within a period of 90 days receipt of the offence report. Respondent has not stated as to when the report was received - In the facts of the present case, it is evident that the offence report was dated 6.9.2016 and therefore the last date for issuing the aforesaid show cause notice would have been 04.12.2016 . Even though the petitioner had an alternate remedy, there is no point in relegating the petitioner to the alternate remedy at the stage - Since, the SCN is to be construed beyond the period of limitation, the impugned order is also liable to be held without jurisdiction and is therefore liable to be quashed. Petition allowed.

Summary

Issues:
Challenge to impugned Order in Original based on Regulation 20(1) of Customs Brokers Licensing Regulations, 2013 - Time-barred show cause notice issuance - Jurisdictional validity of impugned order - Alternate remedy available before Customs and Excise Service Tax Appellate Tribunal - Withdrawal of previous writ petition challenging show cause notice.

Analysis:
The petitioner filed a writ petition seeking to quash the Order in Original No. 59094 of 2017 passed by the respondent, which was based on a show cause notice issued under Regulation 20(1) of the Customs Brokers Licensing Regulations, 2013. The petitioner, a licensed Custom House Agent, argued that the show cause notice was issued beyond the 90-day period stipulated in the regulation, making it time-barred and contrary to established legal principles.

The petitioner contended that the show cause notice was in violation of Regulation 20(1) of the Custom House Agent Licensing Regulations, 2004, as it was issued after the expiry of 90 days from the offence report. Citing previous court decisions, the petitioner argued that the delay in issuing the show cause notice rendered the entire proceeding without jurisdiction. The court noted that the offence report was dated 6.9.2016, making the last date for issuing the show cause notice 04.12.2016, which was well before the actual issuance date of 13.2.2017.

The respondent argued that the petitioner had an alternative remedy available before the Customs and Excise Service Tax Appellate Tribunal and pointed out that the petitioner had previously challenged a show cause notice in a withdrawn writ petition. However, the court emphasized that the issue of limitation was conclusively addressed in a previous Division Bench decision, which favored the petitioner's position. The court held that despite the availability of an alternate remedy, there was no need to relegate the petitioner at this stage, given the clear violation of the limitation period in the present case.

Considering the precedents and the clear violation of the time limit for issuing the show cause notice, the court concluded that the impugned order was without jurisdiction and therefore quashed it, granting consequential relief to the petitioner. The court closed the connected miscellaneous petition in light of the judgment.