2012 (11) TMI 920 - HC - Customs

Suspension of Custom House Agents License - held that - Issue of a show cause notice is not usually contemplated when the orders passed are of an interim nature pending investigation or enquiry. It is always open to the petitioner either to prefer an appeal to the Appellate Authority or make an adequate representation to the respondents, who passed the impugned orders and if such a representation is made,a post decisional opportunity can be given to the petitioner to satisfy the principles of natural justice. The petitioner being an aggrieved party can make an appropriate representation seeking a review of the impugned order and asking the concerned respondent to rescind or modify the order and if such a representation is made by the petitioner the concerned respondent in the above writ petitions shall consider such representation in accordance with law and pass orders on merits within a period of two weeks from the date of the representation after giving an opportunity of hearing to the petitioner, if the petitioner chooses to file any appeal against the impugned orders it is open to the petitioner to file the appeals within a period two weeks from the date of receipt of a copy of this order and if the petitioner files the appeals, the Appellate Authority shall entertain the appeals without reference to the period of limitation prescribed under the CHALR 2004, read with the provisions of the Customs Act. It is open to the petitioner to seek appropriate interim orders before the Appellate Authority - impugned orders shall remain suspended till the filing of the appeals by the petitioner within the above said stipulated time - writ Petitions are disposed of. Consequently, the connected Miscellaneous Petition is closed.

Summary

Issues:
Challenge to suspension of Custom House Agents License under Custom House Agents License Regulation 2004 - Jurisdiction of Commissioner of Customs to suspend license - Alternative remedy of appeal under Regulation 22(8) of the Act.

Analysis:
1. The petitioner sought a Writ in the nature of Certiorari to quash the suspension order of their Custom House Agents License under the Custom House Agents License Regulation 2004. The challenge was primarily based on the contention that the authority of the Commissioner of Customs to suspend the license arises only in cases where immediate action is necessary and an enquiry is pending or contemplated.

2. The petitioner argued that the 15-day time limit stipulated under the regulation should be counted from the date of the enquiry and not from the date of notice or receipt of the report. It was further contended that the order of suspension lacked jurisdiction as it did not fall under Regulation 20(2) of the Act, asserting that immediate action was not warranted.

3. The petitioner relied on the judgment in East West Freight Carriers(P) Limited vs. Collector of Customs, Madras, which established that the suspension of a license is sustainable only when immediate action is necessary, emphasizing the need for the Collector to apply their mind to the urgency of the situation due to a contravention by the clearing agent.

4. Additionally, reference was made to the judgment in Kamal Kumar Agarwal vs. Union of India, which highlighted that the availability of an alternative appellate remedy should not bar the maintainability of a Writ Petition if the action is arbitrary, mala-fide, or violates principles of natural justice, thereby infringing fundamental rights.

5. The petitioner also cited a judgment of the Delhi High Court in Rajinder Kumar Goyal vs. Collector of Customs to support their argument. However, the respondent contended that the Writ Petition was not competent as the petitioner had an alternative remedy of appeal under Regulation 22(8) of the Act.

6. The respondent relied on Regulation 22 which outlines the procedure for suspending or revoking a license under Regulation 20. It mandates a written notice to the Customs House Agent, an opportunity to submit a defense, an inquiry by designated officials, and provision for the Customs House Agent to make representations against the findings before the Commissioner of Customs passes final orders.

7. The respondent further supported their argument by referring to a judgment of the Court in the case of M/s. Cargomar vs. The Commissioner of Central Excise and others. The judgment emphasized the importance of pre-decisional natural justice, the availability of an effective alternative remedy through an appeal, and the need for the petitioner to seek a review or modification of the impugned order through representation to the concerned authorities.

8. The Court, bound by the precedent set in M/s. Cargomar case, disposed of the Writ Petition in line with the principles outlined in the judgment. The impugned orders were suspended pending the filing of appeals by the petitioner within the specified time frame, and no costs were awarded. The Court did not delve into the merits of the case, given the disposition based on the alternative remedy of appeal under Regulation 22(8) of the Act.