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TMI Blog2016 (11) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... on by the said Concern is relating to entry or departure of a conveyance or the import or export of goods in the Customs House Station and their role is limited to the works of preparing documents in the form of prescribed documents under the Customs Act and present the same before the Officer concerned of Customs for assessment to determine the duty amount to be paid and present the goods before the proper officer of customs for physical examination before it is actually cleared from the Customs House Station. It is further stated by the respondent /writ petitioner that Regulation 20(1) of the CHALR 2004 provides for revocation of CHA license granted to a CHA Company after following the procedure prescribed under Regulation 22. Regulation 20(2)r/w20(3) provides for immediate suspension of license without following the procedures prescribed under Regulation 22. The proceeding under Regulation 20(1) and Regulation 20(2) are independent of one another by the virtue of the non-obstante clause in Regulation 20(2). It is further stated by the respondent /writ petitioner that a show cause notice was issued by the appellant/respondent with regard to the certain allegations committed by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as such, the period in which the time has been elapsed on account of the pendency of the litigation, cannot be cited as a ground for the belated issuance of the show cause notice and therefore, found that the show cause notice was issued beyond the period of 90 days from the date of offence report as stipulated under Section 22(1) of CHALR and therefore, quashed the show cause notice vide his order, dated 04.01.2013 and challenging the legality of the same, the Revenue has filed this Writ Appeal. 3. Mr.Nandakumar, learned Standing Counsel appearing on behalf of the appellant/respondent would vehemently contend that it is only a show cause notice and the respondent / writ petitioner can very well respond to the same and in the event of any adverse order being passed, he is having an alternative remedy before CESTAT and therefore, the Writ Petition ought to have been dismissed in limine. It is the further contention of the appellant / respondent though Regulation 22(1) says that the Commissioner of Customs shall issue a notice in writing to the Customs House Agent within ninety days from the date of receipt of offence report, stating that the grounds on which it is proposed to suspe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te of receipt of offence report, stating that the grounds on which it is proposed to suspend or revoke the license and require the said CHA to submit within 30 days. In paragraph No.26 of the order, this Court stated the Government of India, Ministry of Finance(Department of Revenue), Central Board of Excise & Customs, New Delhi has issued issued Circular No.9/2010- Cus., dated 08.04.2010 in F.No.502/2008-Cus VI, wherein clarification on procedures in issuance of licence to CHAs have been issued and it is relevant to extract the following paragraphs: "V) Time limit for completion of suspension proceedings against CHA licensee under Regulation 22: 7.1.The present procedure prescribed for completion of regular suspension proceedings takes a long time since it involves inquiry proceedings, and there is no time limit prescribed for completion of such proceedings. Hence, it has been decided by the Board to prescribe an overall time limit of nine months from the date of receipt of offence report, by prescribing time limits at various stage of issue of show cause notice, submission of inquiry report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs recording ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utory force and it is also reiterated in the above cited circular, this Court is of the view that 90 days prescribed under Regulation 22(1) is mandatory in nature and cannot be treated as directory. The judgments relied upon by the learned Counsel for the appellant are not applicable to the facts and circumstances of the case. 9. Insofar as the submission of the learned Counsel for the appellant that since the impugned notice is a show cause notice, it cannot be challenged by filing a Writ Petition and remedy open to the respondent/ Writ Petitioner is to submit his response and in the event of any adverse order, he can file an appeal before CESTAT Act, the said submission lacks merits and substance for the reason that admittedly, the impugned show cause notice has been issued beyond the period of ninety days from the receipt of offence report and since the relevant statutory regulation as well as Circular issued by them had been violated with impunity, the respondent / Writ Petitioner need not be driven to avail the alternative remedy. In this context, it is useful to refer to the decision of the judgment reported in (2004) 7 SCC 166, S.J.S.Busniess Enterprises (P) Ltd Vs. State o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... facts of the case has categorically found that despite an offence report dated 29.08.2012, the appellant fails to issue the notice within the time prescribed under the Customs House Agents Licensing Regulations 2004. It is also pertinent to point out at this juncture that the interim order of suspension passed against the respondent / Writ Petitioner by invoking Regulation 20(2) of the Customs House Agents Licensing Regulations 2004 has nothing to do with the Regulation 22(1) of the Customs House Agents Licensing Regulations 2004 as both are independent to each other and therefore, the pendency of the legal proceedings pertain to the interim suspension cannot operate as any impediment for the appellant to issue the notice within the time prescribed under the Customs House Agents Licensing Regulations 2004and as such, the belated issuance of the show cause notice, after the receipt of the offence report dated 29.08.2012, on the face of, is unsustainable. The learned Judge has rightly taken note of the said aspect and reached the conclusion to allow the Writ Petition. 10. This Court, on an independent application of mind, is of the view that there is no irregularity or error apparen ..... 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