2017 (3) TMI 160 - HC - Customs

Jurisdiction of Commissioner of Customs - the Commissioner is relying upon an order in original passed with regard to the importer to be the investigating report - whether the Commissioner is entitled to do so? - Held that - An quasi judicial order can be set aside if it is found to be passed in violation of the principles of natural justice, unreasoned, perverse, without jurisdiction or to be in violation of the fundamental rights of the petitioner - In the present case, none of those grounds are substantiated. The order has not been demonstrated to be passed in violation of the principles of natural justice or unreasoned or perverse. The Authorities are within their jurisdiction to pass the impugned order. No right of the petitioner, for less a fundamental right, has been established to be violated by the order impugned - petition dismissed - decided against petitioner.

Summary

Issues:
1. Jurisdiction of the Commissioner of Customs under Regulation 20(2) of the Customs House Agents' Licensing Regulations, 2004.
2. Timeliness of proceedings under Regulation 20(2) in relation to the receipt of the report from the Investigating Authority.
3. Consideration of the order in original as a report of the investigating authority.
4. Availability of statutory alternative remedy and the petitioner's choice to approach the Writ Court.

Jurisdiction of the Commissioner of Customs:
The petitioner contested the order passed by the Commissioner of Customs, arguing that the Commissioner lacked jurisdiction under Regulation 20(2) of the Regulations of 2004 as the necessary conditions were not met. The petitioner emphasized that immediate action was not required in this case, as the alleged defaults dated back to 2009-10. Furthermore, the petitioner highlighted the absence of a report from the Investigating Authority, which is a prerequisite for the Commissioner to assume jurisdiction. The petitioner also raised concerns about the timeliness of the proceedings, citing that they were initiated in 2016, well beyond the 15-day period from the supposed receipt of the report.

Timeliness of Proceedings:
The petitioner contended that the proceedings under Regulation 20(2) were time-barred since they were initiated after the expiry of 15 days from the receipt of the report from the Investigating Authority. However, the department argued that the order in original, received in December 2016, triggered the immediate invocation of Regulation 20(2) for suspension of the petitioner's license. The department maintained that the petitioner had been given a fair opportunity to present objections before the final order of suspension was issued.

Consideration of the Order in Original:
The department asserted that the order in original, resulting from a show cause notice based on an intelligence report, could be considered as a report of the misdeeds of the petitioner. It was argued that Regulation 20(2) does not preclude authorities from relying on a final order like the order in original to initiate suspension proceedings. The department highlighted that the petitioner had the chance to respond to the allegations, and penalties were imposed based on violations of the Customs Act.

Statutory Alternative Remedy and Writ Petition:
The court acknowledged the availability of an appeal against the impugned order but noted the petitioner's choice to seek relief through a writ petition under Article 226 of the Constitution of India. While recognizing that the existence of a statutory alternative remedy does not bar a writ petition, the court emphasized that specific grounds must be established for the writ to be successful. In this case, the court found no substantiated violations of natural justice, jurisdiction, or fundamental rights in the impugned order, leading to the dismissal of the writ petition.

In conclusion, the court dismissed the writ petition, stating that no merit was found in the petitioner's arguments. The court highlighted that the impugned order was within the jurisdiction of the authorities and that the petitioner had not proven any grounds for setting it aside. The court also clarified that the availability of a statutory alternative remedy did not automatically invalidate the petitioner's choice to approach the Writ Court under Article 226.