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2016 (11) TMI 135 - HC - CustomsScope of Regulation 20(1) and 22(1) of Customs House Agents Licensing Regulations 2004 - suspension of CHA licence - whether the order of suspension passed under Regulation 22 of Customs House Agents Licensing Regulations 2004, the time limit is to be complied with or not? - Held that - the Customs House Agent Licensing Regulation having statutory force and it is also reiterated in the Circular No.9/2010- Cus., dated 08.04.2010, this Court is of the view that 90 days prescribed under Regulation 22(1) is mandatory in nature and cannot be treated as directory. The impugned show cause notice has been issued beyond the period of ninety days from the receipt of offence report and since the relevant statutory regulation as well as Circular issued by them had been violated with impunity, the respondent / Writ Petitioner need not be driven to avail the alternative remedy - This Court, on an independent application of mind, is of the view that there is no irregularity or error apparent on the face of the record, which warrants interference and finds no merits, in this Writ Appeal and therefore, it is dismissed.
Issues Involved:
1. Validity of the show cause notice issued beyond the prescribed 90-day period under Regulation 22(1) of the Customs House Agents Licensing Regulations (CHALR) 2004. 2. Whether the pendency of litigation regarding interim suspension under Regulation 20(2) affects the issuance of a show cause notice under Regulation 22(1). 3. The nature of the 90-day period under Regulation 22(1) – whether it is mandatory or directory. 4. The appropriateness of challenging a show cause notice via a Writ Petition instead of responding to it and pursuing alternative remedies. Issue-wise Detailed Analysis: 1. Validity of the show cause notice issued beyond the prescribed 90-day period under Regulation 22(1) of CHALR 2004: The respondent (Customs House Agent) contended that the show cause notice was issued beyond the 90-day period stipulated under Regulation 22(1), as the offence report was received on 29.08.2012 and the notice was issued on 06.12.2012. The court found that the notice was indeed issued beyond the 90-day period and quashed it, emphasizing that the 90-day period is mandatory. 2. Whether the pendency of litigation regarding interim suspension under Regulation 20(2) affects the issuance of a show cause notice under Regulation 22(1): The appellant argued that the delay in issuing the show cause notice was due to the pendency of litigation concerning the interim suspension under Regulation 20(2). However, the court held that the litigation pertaining to the suspension of the license under Regulation 20(2) is independent and has no bearing on the proceedings under Regulation 22(1). Therefore, the delay was unjustified. 3. The nature of the 90-day period under Regulation 22(1) – whether it is mandatory or directory: The court analyzed previous judgments and circulars, concluding that the 90-day period prescribed under Regulation 22(1) is mandatory. This conclusion was supported by the statutory nature of the CHALR 2004 and the binding nature of the circulars issued by the Central Board of Excise & Customs. 4. The appropriateness of challenging a show cause notice via a Writ Petition instead of responding to it and pursuing alternative remedies: The appellant contended that the respondent should have responded to the show cause notice and pursued alternative remedies, such as an appeal before the CESTAT, rather than filing a Writ Petition. The court, however, found this submission lacking merit. Given that the show cause notice was issued in violation of the mandatory 90-day period, the respondent was justified in challenging it directly through a Writ Petition, as the statutory regulation and circular had been violated. Conclusion: The court dismissed the Writ Appeal, upholding the quashing of the show cause notice by the learned Judge. It reaffirmed that the 90-day period under Regulation 22(1) is mandatory, and the pendency of litigation regarding interim suspension under Regulation 20(2) does not justify the delay in issuing the show cause notice. The court also supported the respondent's right to challenge the notice via a Writ Petition due to the clear statutory violation.
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