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TMI Blog2015 (3) TMI 819X X X X Extracts X X X X X X X X Extracts X X X X ..... e impugned order did not reveal that it was so emergent and exceptional, and whether where the order of prohibition was inevitable. Course pursued by the respondent is not liable to be branded as arbitrary or illegal. However, it is to be made clear that operation of the said order has to be limited for a definite period, in view of the observations of Apex Court [1981 (1) TMI 250 - SUPREME COURT OF INDIA] and the Division Bench of the Mumbai High Court [2013 (6) TMI 272 - BOMBAY HIGH COURT] as mentioned already. - The petitioner is set at liberty to file objection, if any, also producing copy of the relevant documents within two weeks and the matter shall be finalized, taking appropriate steps and pass necessary orders in tune with relevant provisions of law, after hearing, within one month thereafter. The right of the petitioner to continue to operate will depend upon the orders to be passed by the respondent. It is made clear that the petitioner will be at liberty to challenge the order to be passed by the respondent, in accordance with law, if it goes detrimental to the rights and interests of the petitioner. - Decided against Petitioner. - WP(C).No. 959 of 2015 (T) - - - D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and an order was passed vide Ext. P10 on 23.12.2014, which is impugned herein. By virtue of the said order, the petitioner has been virtually prohibited from carrying out the activities in the customs station at Cochin, which is totally wrong and unsustainable and hence the challenge. 4. The learned counsel for the petitioner points out that, as evident from the proceedings, steps have been taken against the petitioner on the basis of some complaint preferred by M/s LTIE. But before arriving at any inference, it was very much necessary to have served notice to the petitioner, to explain the facts and circumstances. If the petitioner was given an opportunity to substantiate the position, Ext. P2 authorization would have been brought to the notice of the respondent. It is stated that, as per Regulation 11 (a) of the Customs Brokers Licensing Regulations 2013, the respondent ought to have required the petitioner to produce authorization. The authority of the petitioner to have acted on behalf of the company - M/s LTIE in respect of the earlier transactions, by submitting shipping bills dated 26.09.2013 and 29.01.2013, is not under dispute. The learned counsel for the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has not fulfilled his obligations as laid down under regulation 11 in relation to work in that section or sections. 8. Other relevant provisions are with regard to revocation of licence, suspension of licence and the procedure to be followed; as given under Regulations 18, 19 and 20; which are also extracted below for convenience of reference : 18. Revocation of licence or imposition of penalty - The Commissioner of Customs may, subject to the provisions of regulation 20, revoke the licence of a Customs Broker and order for forfeiture of part or whole of security, or impose penalty not exceeding fifty thousand rupees on a Customs Broker on any of the following grounds namely;- (a) failure of to comply with any of the conditions of the bond executed by him under regulation 8. (b) failure to comply with any of the provisions of these regulations, within his jurisdiction or anywhere else; (c) Committing any misconduct, whether within his jurisdiction or anywhere else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station. (d) adjudicated as an insolvent; (e) of unsound mind; and (f) has been convicted by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be, shall in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs Broker, for the purpose of ascertaining the correct position. (4) The Customs Broker shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall prepare a report of the inquiry and after recording his findings thereon submit the report within a period of ninety days from the date of issue of a notice under sub-regulation (1). (6) The Commissioner of Customs shall furnish to the Customs Broker a copy of the report of the Deputy Commissioner of Customs or As ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ect and until further orders. However all documents already filed prior to issuance of this order will be allowed to be completed. 10. With regard to the nature of challenge raised by the petitioner and denial of opportunity of hearing, the observation made by Apex Court in paragraph 42 of the judgment reported in AIR 1981 SC 818 (cited supra) is very relevant, which is extracted below : 42. In short, the general principle - as distinguished from an absolute rule of uniform application - seems to be that where a statute does not, in terms, exclude this rule of prior hearing but contemplates a post decisional hearing amounting to a full review of the original order on merits, then such a statute would be construed as excluding the audi alteram partem rule at the pre-decisional stage. Conversely, if the statute conferring the power is silent with regard to the giving of a pre-decisional hearing to the person affected and the administrative decision taken by the authority involves civil consequences of a grave nature, and no full review or appeal on merits against that decision is provided, courts will be extremely reluctant to construe such a statute as excluding the duty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f natural justice together with the need, on the other hand to protect the public interest essentially where immediate action is warranted. Hence, where immediate action is warranted, to prevent a customs house agent from carrying out activities which are prejudicial, a prohibitory order can be passed under Regulation 21 for a limited period, During that period an opportunity of hearing can be afforded in compliance with the principles of natural justice, Where immediate action is necessary, a pre decisional hearing can be dispensed with if such a hearing will defeat the requirement of public interest in the orderly and proper functioning of the Customs Station. On the other hand, where immediate action is not required, a prohibitory order can await compliance with the requirements of natural justice. Ordinarily, a pre decisional hearing must be the rule. Dispensation is to be an exception. 12. The crux of the observations is that, when the regulation is silent with regard to compliance, principles of natural justice have to be read into. However, it has also been observed that, in the matter of paramount emergent situation, particularly in public interest, it may not always be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner by the concerned Company - M/s LTIE. It is stated that the power given to the petitioner, vide Ext. P2, was revoked by the concerned company and they were doing operation through another Company by name 'Amity Logistics'. Further pursuant to Ext. P9 summons issued to the Assistant Manager of the petitioner's Company (who was the authorized representative of the petitioner company to submit all necessary proceedings before the respondent) a statement was taken under Section 108 of the Customs Act. It was after considering the facts and figures, that Ext. P10 order was issued to meet the need of the hour and the petitioner was prohibited from operating, until further orders. 15. After hearing both the sides, this Court finds that the course pursued by the respondent is not liable to be branded as arbitrary or illegal. However, it is to be made clear that operation of the said order has to be limited for a definite period, in view of the observations of Apex Court and the Division Bench of the Mumbai High Court as mentioned already. In the said circumstances, operation of Ext. P10 order passed by the respondent is limited to be in force for a period of ' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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