2015 (5) TMI 802 - HC - Customs

Suspension of license - Lending of license to other person - Smuggling of cigarettes in the name of import of dining sets - Held that - The power under Article 226 of the Constitution of India is an extraordinary power and should be exercised by the High Courts only in those cases where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice causing prejudice to the petitioner (please see Union of India-vs.-Guwahati Carbon Ltd. (2012 (11) TMI 885 - SUPREME COURT OF INDIA)). Prima facie, I do not find any patent illegality on the face of the order impugned or that principles of natural justice have been violated in any manner. However, these observations of mine are only tentative in nature since I am minded to dispose of the writ petition on the grounds stated hereinafter. The Customs law is a complete code by itself. The Customs Act and the rules and bye-laws framed thereunder constitute a comprehensive and exhaustive code. The impugned order in the instant case has been passed by the Commissioner of Customs in exercise of his power under the Customs Brokers Licensing Regulations, 2013 which are framed under Article 146 (2) of the Customs Act, 1962. Regulation 21 provides that a Customs Broker who is aggrieved by any order passed by the Commissioner of Customs under the said regulations may prefer an appeal under Section 129A of the Customs Act to the Customs, Central Excise and Service Tax Appellate Tribunal. The appeal as provided for, in my opinion, is an efficacious alternative remedy available to an aggrieved broker like the writ petitioner. - court ought not to exercise its extraordinary power under Article 226 of thse Constitution of India. Accordingly, this writ application fails and is dismissed. - Decided against appellant.

Issues Involved:

1. Violation of principles of natural justice.
2. Compliance with Regulation 20 of the Customs Brokers Licensing Regulations, 2013.
3. Availability of an efficacious alternative remedy under Regulation 21 of the CBLR, 2013.

Detailed Analysis:

1. Violation of Principles of Natural Justice:

The petitioner argued that the statements of one Manoj Baid were relied upon by the department, but Mr. Baid was not offered for cross-examination, which was a blatant violation of principles of natural justice. Additionally, no opportunity was given to the petitioner company to make submissions on merits, including dealing with statements recorded during the examination of witnesses. The respondents countered this by stating that Mr. Baid was duly given notice to appear but failed to turn up, and his license had been revoked earlier. They also contended that cross-examination was allowed, and the principles of natural justice were rigorously followed.

2. Compliance with Regulation 20 of the Customs Brokers Licensing Regulations, 2013:

The petitioner contended that the offence report was received by the respondent authorities on 11th July 2013, but the show cause notice was issued on 11th February 2014, much beyond the 90 days from the date of receipt of the offence report, thus violating Regulation 20. The petitioner relied on the decision of the Madras High Court in A.M. Ahamed & Co.-vs.- Commissioner of Customs (Imports), Chennai, which held that the 90-day period specified in Regulation 20 is mandatory. The respondents, however, argued that the 90-day period is only directory and not mandatory, and issuance of notice beyond this period does not render the proceedings invalid.

3. Availability of an Efficacious Alternative Remedy under Regulation 21 of the CBLR, 2013:

The respondents highlighted that Regulation 21 of the CBLR 2013 provides an aggrieved Customs Broker with an alternative remedy by appealing to the Customs, Central Excise and Service Tax Appellate Tribunal under Section 129A of the Customs Act. They relied on the Supreme Court decision in Union of India-vs.-Guwahati Carbon Ltd., which emphasized that when a revenue statute provides a specific remedy, it must be sought in that forum and manner. The court noted that the Customs law constitutes a comprehensive and exhaustive code, and the appeal provided under Regulation 21 is an efficacious alternative remedy.

Judgment:

The court, considering the rival contentions, emphasized that the power under Article 226 of the Constitution of India is extraordinary and should be exercised only when the statutory authority has not acted in accordance with the provisions of the enactment, defied fundamental principles of judicial procedure, or violated principles of natural justice causing prejudice. The court did not find any patent illegality or violation of natural justice in the impugned order. Referring to several Supreme Court decisions, the court reiterated that where a statute provides for an alternative remedy, the High Court should not normally exercise jurisdiction under Article 226.

The writ application was dismissed, with the court directing that if the petitioner approaches the Customs, Central Excise and Service Tax Appellate Tribunal within six weeks, the Tribunal shall decide the appeal in accordance with law without being influenced by any observation in this order.

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