2016 (9) TMI 833 - HC - Customs

Maintainability of writ petition - alternative remedy of appeal under Sec. 129A of the Customs Act, 1962 - assorted confectionary items - principles of natural justice - revocation of CHA license under Regulation 20(1) of the CHALR 2004 (replaced by Regulation 18 of the Customs Brokers Licencing Regulations, 2013 - forfeiture of security deposit - whether the writ petition is maintainable when the alternative remedy of appeal is available? - Held that - the decision in the case Whirlpool Corporation Versus Registrar of Trade Marks, Mumbai & Ors. 1998 (10) TMI 510 - SUPREME COURT is relied upon. Availability of an efficacious alternative remedy is not an absolute bar to the maintainability of a writ petition. The High Court, having regard to the facts of a case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective alternative remedy is available, the High Court would not normally exercise its writ jurisdiction. The High Court will require the aggrieved party to exhaust the alternative remedy before the Court intervenes by way of judicial review. 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 appeal is a more comprehensive remedy in which all issues including factual issues and sufficiency or otherwise of the evidence on record can be gone into. When a statute is a complete code in itself on the concerned subject like the Customs Act and it provides a particular remedy before a particular forum, the aggrieved party must ordinarily exhaust such remedy before invoking the high prerogative writ jurisdiction of the High Court. This is a practice ordinarily followed by the Writ Courts and nothing extraordinary found in the facts of this case to depart from such well established practice. The decision in the case Nepa Agency Co. Pvt. Ltd. vs. Union of India 2015 (5) TMI 802 - CALCUTTA HIGH COURT is followed. Whether a writ petition can be dismissed on the ground of alternative remedy if the same has been admitted for hearing? - Held that - it is not the legal position that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. The decision in the case of State of Uttar Pradesh-vs.-Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti 2008 (5) TMI 642 - SUPREME COURT is followed. The court is not inclined to exercise its extraordinary power under Art. 226 of the Constitution - if the petitioners approach the CESTAT by way of appeal against the order under challenge in this writ petition within a period of 6 weeks from date, the Tribunal shall decide such appeal in accordance with law without being influenced by any observation in this order, as expeditiously as possible, and preferably within a period of 6 months from date of presentation of the appeal, if any - petition dismissed - decided against petitioner.

Summary

Issues Involved:
1. Challenge to the revocation of Customs House Agents Licence (CHA Licence).
2. Alleged violation of principles of natural justice.
3. Maintainability of the writ petition in light of the availability of an alternative remedy.

Detailed Analysis:

1. Challenge to the Revocation of CHA Licence:
The petitioners challenged an order dated 24 October 2014, passed by the Commissioner of Customs (Airport & Administration), Calcutta, which revoked the CHA Licence held by petitioner no. 1 and directed forfeiture of the entire security deposit. The petitioners contended that the allegations leading to the revocation were incorrect and that the Enquiry Officer did not give due consideration to the documents submitted by them. They argued that the findings of the Enquiry Officer, which were upheld by the Commissioner, were mechanical and without any basis, constituting a violation of Regulation 13(a) of the CHALR, 2004.

2. Alleged Violation of Principles of Natural Justice:
The petitioners argued that the enquiry proceedings were conducted in violation of the principles of natural justice. They claimed that the records pertaining to the bill of entry were neither disclosed nor produced at the time of hearing, and no document from the Assessing Officer was provided to show that there had been a failure on their part to produce the Letter of Authority. The petitioners cited several judgments to support their contention that the writ petition should be entertained despite the availability of an alternative remedy, as the impugned order was passed without observing the principles of natural justice.

3. Maintainability of the Writ Petition:
The respondents argued that the writ petition should not be entertained due to the availability of an appeal under Sec. 129A of the Customs Act, 1962, as provided by Regulation 21 of the Customs Brokers Licensing Regulations, 2013. They cited the decision in Union of India vs. Guwahati Carbon Ltd., where the Supreme Court observed that when a revenue statute provides a specific remedy, it must be sought in the prescribed manner and forum. The respondents also referred to a similar case, Nepa Agency Co. Pvt. Ltd. vs. Union of India, where the writ petition was dismissed due to the availability of an alternative remedy.

Court’s View:
The court emphasized that judicial review is concerned with the procedure followed by the authority in arriving at a decision, not the merits of the decision itself. The court found no ex facie illegality or violation of principles of natural justice in the order under challenge. The Commissioner’s order was deemed well-reasoned and passed after discussing the evidence on record, with the petitioners given full opportunity to explain or refute the charges.

The court acknowledged that the availability of an efficacious alternative remedy is not an absolute bar to the maintainability of a writ petition. However, it is a practice for the High Court to require the aggrieved party to exhaust the alternative remedy before intervening. The court noted that the Customs Act and the Regulations constitute a comprehensive code, and the appeal process provided therein is a more comprehensive remedy for addressing all issues, including factual ones.

Conclusion:
The court dismissed the writ petition on the ground of the availability of an alternative remedy. It stated that if the petitioners approach the CESTAT by way of appeal within six weeks, the Tribunal should decide the appeal in accordance with the law, without being influenced by any observations in the court’s order, and preferably within six months from the date of presentation of the appeal.

The writ petition (WP No. 1193 of 2013) was accordingly disposed of.