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TMI Blog2013 (9) TMI 783X X X X Extracts X X X X X X X X Extracts X X X X ..... corrected and an opportunity of hearing is given to the aggrieved party - The aforesaid provision will be equally applicable to emergent and immediate action, which are taken under Regulation 21 - In these circumstances, we are leaving the second contention open as the petitioner can raise the said objection before the authorities concerned in the post-decisional hearing – Relying upon INTERNATIONAL CARGO SERVICES Versus UNION OF INDIA [2005 (5) TMI 81 - HIGH COURT OF DELHI ] - The petitioner was entitled to post-decisional hearing also and then the respondents should pass a speaking order. Mohinder Singh Gill v. The Chief Election Commissioner, New Delhi [1977 (12) TMI 138 - SUPREME COURT ] - wherever the Parliament had intended a hearing it had said so in the Act and the rules and inferentially where it had not specified it was otiose - There was no such sequitur - The silence of a stature had no exclusionary effect except where it flows from necessary implication. Plain reading of the regulation 20 (2) would show that it was an emergent provision and its very purpose may be frustrated if the hearing was to be granted without exception and irrespective of the compelling fac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plicable only when proceedings are initiated for suspension and revocation of licence and not when an order of prohibition is passed in Regulation 21. 4. Regulations 20, 21 and 22 of the 2004 Regulations read as under:- 20. Suspension or revocation of licence.- (1) The Commissioner of Customs may, subject to the provisions of Regulation 22, revoke the licence of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part or whole of security, on any of the following grounds, namely:- (a) Failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under Regulation 10; (b) Failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else; (c) Any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or anywhere else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station. (2) Notwithstanding anything contained in sub-regulation (1), the Commissioner of Customs may, in appropriate cases ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng for so doing. (5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings. (6) The Commissioner of Customs shall furnish to the Customs House Agent a copy of the report of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, and shall require the Customs House Agent to submit, within the specified period not being less than sixty days, any representation that he may wish to make against the findings of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. (7) The Commissioner of Customs shall, after considering the report the inquiry and the representation thereon, if any, made by the Customs House Agent, pass such orders as he deems fit. (8) Any Customs House Agent aggrieved by any decision or order passed under regulation 20 or sub-regulation (7) of regulation 22, may prefer an appeal under section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of section 129 of the Act. 5. Sub-clause (1) to Regulation 20 stipulates that the Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice is violation of basic rule of law and would invite judicial chasticism. However, this rule is not without exceptions. Of course, the exception to such a rule are rare. Where the legislative scheme of provisions of a statute suggest that intent of the legislature is to take emergent action, in that event and subject to fulfillment of ingredients of the provisions, an order could be passed without affording pre-decisional hearing and an expeditious post-decisional hearing may amount to substantial compliance with the basic rule of law. Regulation 20 (1) empowers the Commissioner of Customs to revoke the license of an agent and even order forfeiture of part or whole security. This action could be taken restricted to the grounds spelled out in the regulation itself. This power can hardly be invoked by the authorities for instantly revoking a license while under 20 (2) of the regulations the same authority may in appropriate cases where immediate action is necessary suspend the license of the agent where enquiry against such agent is pending or contemplated. The emphasis is on the expression 'immediate action is necessary' and 'enquiry against such agent is pending or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conflict between the language of these two provisions. An order of suspension is bound to have serious consequences upon the business of the agent and tantamounts to practically closing the business of the agent. As such to permit an order of suspension, even passed in emergent situations, to continue for indefinite period without hearing the agent would definitely be infringement of the principles of natural justice and basic rule of law as well. The only way in which both these provisions can operate without conflict is to hold that an order of suspension in 'emergent' situation can be passed for recorded reasons without hearing the agent at the first instance but should be granted opportunity of showing cause immediately thereafter and the authorities are expected to apply their mind whether the order of suspension so passed should be permitted to continue or not. This power is an exception to the normal rule of audi alteram partem and therefore recourse to it should be only in the case of immediate action in public interest or to prevent breach of statutory provisions, regulations or conditions of license, failing which serious consequences are bound to flow. 8. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, justifying passing of such an order. In the present case, no circumstances existed which would suggest invoking of this emergency provisions without taking recourse to the principle of natural justice. Furthermore, the order does not state, much less specifically give reasons which show proper application of mind by the concerned authorities for arriving at such a conclusion. Even administrative orders should be supported by proper reasons and application of mind (Union of India v. E.G. Nambudiri-AIR 1991 SC 1216). Thus, on both these accounts, the petitioner is entitled to succeed. 8. Following the said judgment, the respondents themselves have issued Circular No. 9/2010-Customs dated 8th April, 2010 stating that where immediate suspension action is required under Regulation 20(2), there is no need to follow the procedure prescribed in Regulation 22, but it has been decided by the Board that post-decisional hearing should be given in all such cases so that errors apparent, if any, can be corrected and an opportunity of hearing is given to the aggrieved party. The aforesaid provision will be equally applicable to emergent and immediate action, which are taken under Regulat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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