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TMI Blog2016 (7) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... : Mr. D. V. Pathy, Advocate For the Respondents : Mr. Sanjay Kumar, ASG JUDGMENT ( Per Honourable Mr. Justice Chakradhari Sharan Singh ) These two writ applications, under Article 226 of the Constitution of India, have been filed on behalf of the same petitioner and arise out of the action taken, under the provisions of Customs House Agent Licensing Regulations, 2004 (CHALR)/Customs Broker Licensing Regulation, 2013 (CBLR), against the petitioner, which is said to be a registered company, engaged in the business of Customs House Agent (hereinafter referred to as C.H.A. ). 2. The petitioner held licence of C.H.A. in accordance with the said CHALR, framed under sub-Section (2) of Section 146 of the Customs Act, 1962. 3. By Adjudication Order No. 1 (7) and C.H.A. Order No. 01/2013, dated 04.04.2013, invoking provisions of Regulation 20 and 22 of the CHALR, the petitioner s license was suspended by the Commissioner, Customs (Headquarters), Patna. The petitioner has challenged the said order of suspension by filing CWJC No. 19535 of 2014. The Customs House Agent Licensing Regulations, 2004 (CHALR), came to be superseded with issuance of notification, dated 21.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 19535 of 2014 has lost its significance and has become infructuous in view of the subsequent developments, whereby the petitioner s license itself has been cancelled and which is under challenge in CWJC No. 5540 of 2015. 8. A preliminary objection has been raised at the very outset by Ms. Nivedita Nirvikar, learned Central Government Counsel, appearing on behalf of the respondents, over maintainability of the present writ application (CWJC No. 5540 of 2015) on the ground of existence of statutory and equally efficacious remedy under Regulation 21 of the CBLR, which reads thus:- 21. Appeal by Customs Broker.- A Customs Broker, who is aggrieved by any order passed by the Commissioner of Customs under these regulations, 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. 9. Ms. Nirvikar has submitted that there is no exceptional circumstance for this Court to entertain this writ application, despite there being statutory remedy available to the petitioner. She has, accordingly, submitted that this writ application deserves to be dismissed at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wner of the goods and another person as CHA. He categorically said that whatever goods had been imported in the name of M/s Regent Enterprises did not belong to him and only his IEC was used. In course of investigation of another consignment, which was imported in the name of M/s Regent Enterprises, his (Izahar Hussain s) statement, under Section 108 of the Customs Act, was recorded, wherein he said that he had never imported and exported any goods into or out of India and he did not know what was an IEC and one Mehmood Patni had approached him in February, 2009, and offered to obtained an IEC in his name. Mehmood Patni is said to have promised him to pay regular money for use of his IEC. Mehmood Patni also convinced him that he would not get into any trouble and promised to pay him regular money. He further said that said Mehmood Patni had given him a sum of ₹ 30,000/- in two instalments and when he was suspicious about the money which said Mehmood Patni was giving, Mehmood Patni made him to understand that he would not put him in trouble. He also disclosed that since he (Mehmood Patni) was not paying him money, he had taken back the IEC from Mehmood Patni and, thereafter, h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llowed the IEC of one Izahar Hussain to be used for the purpose of said import. The status of Sheikh Khursheed, as Director, has been disputed in the writ application, which is evident from the statements made in paragraphs 4 and 5 of CWJC No. 5540 of 2015, as follows: 4. That the petitioner, after having Custom House Agent/Custom Broker (hereinafter CHA/CB) License No. 01/CHA/2008 by the Commissioner of Customs, Patna (Res No 2) on 29.02.2008, has been professing the business of Custom House Agent on all India basis and while granting license the respondent did not assure any secured or guaranteed any sort of business or livelihood. 5. That the petitioner opened an office at Mumbai in November/December, 2008 at declared address and besides directors, appointed at least six employees on salary among whom two persons were G-card holder and three persons were H-card holder. That it is further stated that one Shaikh Khursheed was a G-card holder employee of petitioner, at the relevant time and subsequent he has resigned from his service since 30th January 2013 on account of illness of his wife. (Emphasis is supplied) 18. The purpose of making statement in paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d order, dated 30.09.2015, has been brought on record by way of Annexure 29 to the supplementary affidavit filed on behalf of the petitioner. 23. What is surprising from the said order is that address of the appellant, Sheikh Khursheed, has been described as follows: Shri Shaik Khusheed, Director, M/s Bhaskar Logistics Services Pvt. Ltd. CHA No. 11/459, B Wing, 201, Om Adarsh Co-op Society, Deonar BMC Colony, Govandi, Mumbai 400043 24. The address of Sheikh Khursheed contradicts the statement made by the petitioner in paragraphs 4 and 5 of the writ application, wherein it has been mentioned that said Sheikh Khursheed had resigned from service on 30.01.2013. Had that been so, the address of Sheikh Khursheed would have been different. We are not on the consequence or purpose of the said statement having been made in paragraph 5 of the writ application, but in our view, the statement is palpably false which has been deliberately made to mislead this Court in a proceeding under Article 226 of the Constitution of India. The conduct of the petitioner is reprehensible. 25. Mr. D. V. Pathy, learned Counsel appearing on behalf of the petitioner has submitted that in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... irector, Sheikh Khursheed, and did not exercise due diligence to ascertain the correctness of the actual importer, and did not observe due diligence for proper classification and valuation of the imported goods. 28. Mr. Pathy has placed reliance on the Division Bench decision of the Kerala High Court, in the case of Proprietor, Carmel Exports and Imports (supra), wherein the Court held, in paragraph 15, as follows:- 15. Coming to the submission that the appellant is only a name lender for the import of goods by one Anwar, we shall presume for the time being that the appellant is only a name lender, but the actual beneficiary of the import is one Anwar. We called upon learned counsel for the respondents to place the relevant provision which prohibits such an activity on the part of an Import Export Code Number holder. Learned counsel for the respondents categorically made a statement that he is not able to place any such prohibition in law except Section 7 of the Foreign Trade (Development and Regulation) Act, 1992, which reads as follows :- 7. Importer-exporter Code Number. - No person shall make any import or export except under an Importer-exporter Code Number gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of a statutory discretion vested in a public authority, but not caprice. In either case the respondents are required to take a decision expeditiously either to make a regular assessment or a provisional assessment or a decision to confiscated the goods in question if it is permissible under law after following appropriate procedure or provisionally release the goods under Section 110-A of the Customs Act. As already noticed, even in a case where the goods are liable for confiscation, Section 125 of the Customs Act provides for redemption of goods on payment of fine so long as the goods are not goods falling under the category of prohibited goods for the purpose of import. (Emphasis is supplied) 29. It is noticed from the Division Bench decision of the Kerala High Court, in the case of Proprietor, Carmel Exports and Imports (supra), that nothing was brought to the notice of the Court except Section 7 of the Foreign Trade (Development and Regulations) Act, 1992. The Kerala High Court held that Section 7 of the said Act prescribes that no person shall make any import or export except under Importer-Exporter Code Number, granted, by the Director General or the Officer authorize ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y for the purpose of implementing provisions of the said Act, rules and orders made thereunder, as well as the foreign trade policy. It also prescribes that such procedures shall be published by means of public notice. In exercise of power conferred under the said Paragraph 2.4 of the Foreign Trade Policy, 2009-2014, the Director General of Foreign Trade had notified the handbook of procedures and the appendices to the handbook of procedures, which came into force with effect from 05.06.2012. 31. Thus, the importer/exporter is a person who imports or exports goods on his own account and such person must have his own account number in his name as granted by the Director General of Foreign Trade and is under obligation to declare it to the Customs in terms of Rule 12 of Foreign Trade (Regulation) Rules, 1993. It is the legislative intent that only one Importer-Exporter Code is allowed against one Permanent Account Number (PAN) and no person could import or export without IEC. If the actual importer or exporter is not having his own IEC, he could be able to circumvent the obligation imposed under Customs Act or under any other law, for the time being in force. 32. These provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, it came to light that the goods were imported by Ramesh and Kamlesh in the name of M/s Regent Enterprises, which were under-valued for the purpose of evading Customs duties. It is difficult for this Court to arrive at a conclusion that no violation of Regulation 11 (e) of the Customs Broker Licensing Regulations, 2013 is made out. The plea that Sheikh Khursheed disassociated himself from the affairs of the petitioner-company, may make the case of the petitioner worse inasmuch as there is requirement under Clause (5) of Regulation 17 of Customs Broker Licensing Regulations, 2013, that Where the Customs Broker has authorized any person employed by him to sign documents relating to his business on his behalf, he shall file with the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, a written authority in this behalf and give prompt notice in writing if such authorization is modified or withdrawn . It is not the case of the petitioner that after said Sheikh Khursheed severed his relationship with the petitioner-company, it informed the concerned Deputy Commissioner of Customs or Assistant Commissioner of Customs withdrawing authorization give ..... X X X X Extracts X X X X X X X X Extracts X X X X
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