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TMI Blog2015 (8) TMI 627X X X X Extracts X X X X X X X X Extracts X X X X ..... te period on those grounds and on same set of facts when proceedings were going on before same authority – Hence, petition was required to be allowed –Impugned order prohibiting work hereby quash – Decided in favour of Petitioner. - SPECIAL CIVIL APPLICATION NO. 7072 of 2015 - - - Dated:- 23-7-2015 - MR. A.J.DESAI AND MR. A.G.URAIZEE, JJ. FOR THE PETITIONER : MR PARESH M DAVE, ADVOCATE FOR THE RESPONDENT : MR YN RAVANI, ADVOCATE JUDGMENT (PER : HONOURABLE MR.JUSTICE A.J.DESAI) 1. Rule. Mr.Y.N.Ravani, learned advocate waives service of notice of Rule on behalf of respondent No. 2. 2. With the consent of the parties, the matter is taken up for final hearing. 3. By way of the present petition under Articles 14, 19(1)(g) and 226 of the Constitution of India, petitioner No. 1 a registered and licensed Customs House Agent and petitioner No. 2 being a Director of petitioner No.1 have prayed as under: [A] That Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ order or direction quashing and setting aside order F.No.VIII/1308/ CusT/ CB/201415 dated 28.02.2015 9read with Corrigendum dated 11.03.2015) (Annexure ' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty and therefore, respondent No. 2 issued show cause notice dated 29.01.2015 to the importer as well as Custom House Agent (petitioner) and called upon both the noticees to reply the same. The action, which was contemplated in the notice, was to take action against the present petitioner under the provisions of Section 114A of the Customs Act, 1962 (herein after referred to as 'the Customs Act' for short) and under the provisions of Customs House Agents Licensing Regulations, 2004 (herein after referred to as 'the Regulations, 2004' for short) and particularly, for the violation of Regulation 13(e) of the Regulations, 2004. Noticee were called upon to file their reply within a period of 30 days from the date of receipt of the said notice. As far as the petitioner is concerned, the corrigendum dated 19.02.2015 was issued passed modifying certain paragraphs of the notice and the petitioner was called upon to reply with regard to violation of the regulation 13(d) of the Regulations, 2004 also in addition to alleged breach under the provision of Section 114 of the Customs Act as well as under regulation of 13(e) of the Regulations, 2004. 5.4. On 28.02.2015, the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lled for or heard and there was no occasion for the petitioner to put forward his case before the authority. He would further submit that the order dated 28.02.2015 has been passed under Regulation 21 of the Regulations, 2004 on ground of breach of Regulations 13(d) and 13(e) of the Regulations, 2004 subsequent to issuance of show cause notice dated 29.01.2015. He would further submit that impugned prohibition order is of a permanent nature and has permanently restrained the petitioner from working as Custom House Agent, and therefore, he would submit that even if it is expected that the proceedings are of independent nature, other than notice issued in the month of January, 2015, such order should have been passed only after giving an opportunity of hearing to the petitioner. He would further submit that even the order is passed in the month of February, 2015 neither Jamnagar authority, who has issued notice in the month of January, 2015 to the petitioner, has proceeded with the case nor the Mumbai authority has initiated any proceedings under Regulation 20 of the Regulations, 2004 therefore, the petitioner is facing serious difficulties and the order impugned, which is of a perma ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the same have been issued to the importer as well as the petitioner. The petitioner were called upon to reply the show cause notice. Para 16 of the the show cause notice reads as under: 16. Now, therefore, M/s. Fourcee Infrastructure Equipment Pvt. Ltd., having their office at Laxmi Mall, Laxmi Indstrial Estate, New Link Road, Andheri (W), Mumbai, Shri Rajesh Vihalka, Chairman of the said party and CHA M/s. SSS Sai Shipping Pvt. Ltd., are hereby called upon to show cause notice to the Commissioner of Customs (Preventive), Jamnagar having her office at Sharda House, Opp. Panchavati, Bedi Bunder Road, Jamnagar, within 30 days from the date of receipt of this show cause notice as to why: [i] 100 containers covered under Bills of Entry No. F002/ 1314 dated 12.06.2013 valued ₹ 14,35,17,541/involving Customs duty of ₹ 4,14,07,451/should not be confiscated under Section 111(O) of the Customs Act, 1962; [ii] Customs duty of ₹ 4,14,07,451/( Rupees Four Crore Fourteen Lakh Seven Thousand Four Hundred Fifty One Only) should not be confirmed and demanded under Section 18(2) of the Customs Act, 1962 / the bond executed during the provisional assessment, read with pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to guide the party to pay up the Customs duty within the stipulated time period of filing the Bills of entry, which resulted in loss of revenue to the extent of ₹ 4,14,07,451/. For the acts omission and commission on the part of CHA, they rendered themselves liable for penalty under Section 114A of the Customs Act, 1962. Also separate action against the CHA, M/s SSS Sai Shipping Lines, should be initiated for violating Regulation 13(e) of Customs House Agents Licensing Regulations, 2004 The following shall be substituted Further, M/s SSS Sai Shipping Lines, CHA, engaged in the customs work failed to advice M/s. Fourcee Infrastructure Equipments Ltd., about the provisions of the Notification No. 104/94. Later on when the party filed the Bills of entry, CHA, failed to impress upon the party to pay the Customs duty due on them within the stipulated time along with interest. Also CHA failed to advise noticeeto comply with the provisions of the Act. In case of noncompliance, the CHA shall bring the matter to the notice of the department. As per the Regulation 13(d) and 13(e) of the Customs House Agents Licensing Regulations, 2004, a Custom House Agent shall advise his cli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (d) and 13(e) of the Regulations, 2004, which are in Paras 13 and 14 of the order impugned, which read as under: 13. Further, M/s. SSS Sai Shipping Lines, CHA engaged in the customs work failed to advice M/s. Fourcee Infrastructure Equipments Ltd., about the provisions of the Notification No. 104/94. Later on when the party filed the Bills of entry, CHA failed to impress upon the party to pay the Customs duty due on them within the stipulated time along with interest. As per the Regulation 13(d) and 13(e) of Customs House Agents Licensing Regulations, 2004, a Custom House Agent (Custom Broker) shall advise his client to comply with the provisions of the Act and in case of noncompliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner Customs and he shall exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage. As mentioned above, the CHA failed not only to guide the party to pay up the Customs duty within the stipulated time period of filing the Bills of entry but also failed to bring the matter to the notice of t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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