2018 (4) TMI 685 - HC - Customs

Maintainability of petition - alternative remedy of appeal - Held that - the Hon ble Supreme Court, as well as this Court, held that, ordinarily, writ petition should not be entertained when the Statutes provide for an effective and alternative remedy, more so, in revenue matters - where hierarchy of appeals is provided by the Statute, the party must exhaust the statutory remedies before resorting to writ jurisdiction. Suspension of CHA License - penalty - Regulation 20 of the Customs Brokers Licensing Regulations, 2013 - non-adherence of the mandatory time limit prescribed in Regulation 19(2) of the CBLR - classification of imported goods - the appellant had wrongly classified the goods in question despite the existence of order-in-appeal No.1323 of 2014, dated 30.07.2014, passed against the importer M/s.BenQ India Pvt. Ltd, by the Commissioner of Customs (Appeals), Chennai. Held that - Writ Court, while dismissing the writ petition, directed the appellant herein, to submit their reply, to the show cause notice, dated 03.11.2017, within a period of 30 days, from the date of receipt of a copy of the order impugned herein and upon compliance of the directions contained in paragraph 15, of the show cause notice, the respondent shall adjudicate the show cause notice and pass final orders as expeditiously as possible, preferably within a period of two months from the date on which, the case is ready for adjudication. Writ Court has also made it clear that show cause notice issued under Regulation 20, shall be adjudicated by the respondent without being in any manner influenced by the observations made in the order of the Writ Court - there is no infirmity or illegality, in the impugned order, passed by the Writ Court, as Courts have time and again, held that where hierarchy of appeals, is provided by the Statute, the party must exhaust the statutory remedies, before resorting to writ jurisdiction. The parties are directed to strictly adhere to the time line, framed in the impugned order. Appeal dismissed - decided against appellant.

Summary

Issues Involved:
1. Legality of the suspension of the Customs Broker License.
2. Adherence to the mandatory time limits under Regulation 19(2) of the Customs Brokers Licensing Regulations, 2013.
3. Justification for invoking Regulation 19(1) for immediate suspension.
4. Availability and adequacy of alternative remedies.
5. Interpretation of the obligations and penalties under the Customs Brokers Licensing Regulations, 2013.

Detailed Analysis:

1. Legality of the Suspension of the Customs Broker License:
The appellant, a Customs Broker, had their license suspended by the respondent under Regulation 19(1) of the Customs Brokers Licensing Regulations, 2013, due to alleged misclassification of imported goods. The appellant contested the suspension, arguing it was unjustified and that the correct classification was based on the importer’s instructions and previous practices. The court upheld the suspension, emphasizing the broker’s duty to ensure compliance with customs regulations and the significant trust placed in them by both importers and customs authorities.

2. Adherence to the Mandatory Time Limits under Regulation 19(2):
The appellant argued that the suspension order did not adhere to the mandatory time limits prescribed in Regulation 19(2). However, the court found that the respondent had complied with the procedural requirements, including granting a hearing to the appellant within fifteen days of the suspension and issuing a show cause notice under Regulation 20. The court noted that the suspension was continued after due consideration and hearing, thus fulfilling the regulatory requirements.

3. Justification for Invoking Regulation 19(1) for Immediate Suspension:
The appellant contended that the suspension was not warranted as there was no immediate threat to revenue. The court, however, held that the respondent had provided sufficient reasons for the suspension, including the deliberate misclassification of goods to avail duty exemptions, which was a serious violation. The court highlighted that the term “immediate” in Regulation 19(1) should be interpreted in the context of the Customs Brokers Licensing Regulations, and found no delay in the suspension process that would take the case out of the purview of immediate action.

4. Availability and Adequacy of Alternative Remedies:
The court emphasized that the appellant had an effective alternative remedy available through the statutory appeal process. Citing several precedents, the court reiterated that writ petitions should not be entertained when statutory remedies are available, especially in revenue matters. The court noted that the appellant had already received a show cause notice under Regulation 20 and was in the process of submitting a reply, indicating that the appropriate forum for adjudication was the statutory mechanism provided under the Customs Brokers Licensing Regulations.

5. Interpretation of the Obligations and Penalties under the Customs Brokers Licensing Regulations, 2013:
The appellant argued that the violations alleged could only attract a penalty of up to fifty thousand rupees and did not warrant suspension. The court disagreed, interpreting Regulation 18 to mean that the Commissioner of Customs has the discretion to decide the nature of the penalty, including suspension or revocation of the license, based on the severity of the violation. The court stressed that the broker’s obligations under Regulation 11, including advising clients to comply with customs laws and exercising due diligence, were critical and any breach could justify severe penalties.

Conclusion:
The court dismissed the writ appeal, upholding the suspension of the appellant’s Customs Broker License. It directed the appellant to submit their reply to the show cause notice within thirty days and instructed the respondent to adjudicate the notice expeditiously. The court reaffirmed the principle that statutory remedies should be exhausted before invoking writ jurisdiction and emphasized the importance of adhering to regulatory obligations and procedures in customs matters.