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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 ..... finds no merits, in this Writ Appeal and therefore, it is dismissed. - W. A. (MD) No. 260 of 2013 M. P. (MD). No. 1 of 2013 - - - Dated:- 24-10-2016 - M. Sathyanarayanan And J. Nisha Banu, JJ. For the Appellant : Mr. R. Nandakumar For the Respondent : Mr. P. Saravanan and Mr. M. Saravanan JUDGMENT [ Judgment of the Court was delivered by M. Sathyanarayanan , J. ] The respondent / Revenue in W.P.(MD).No.16351 of 2012 is the appellant herein and aggrieved by the final order, dated 04.01.2013, in and by which, challenge made to the show cause notice, dated 06.12.2012, issued by the appellant herein, has been sustained by the learned Judge and hence, came forward to file this Writ Appeal. 2. A perusal of the materials placed before this Court would disclose among other things that the respondent /writ petitioner carries the business of Custom House Agents (in short 'CHA') and to carry out this agency work, he obtained license in the year 2004 under Section 146 of the Customs Act 1962 and CHALR 2004 Regulations. The nature of the activities carried on by the said Concern is relating to entry or departure of a conveyance or the import or export of go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd on account of the fact that the said issue was pending litigation before this Court in different stages from the month of October 2012 to November 2012, the department waited for the decision of the High Court till 29.11.2012 and thereafter, issued the show cause notice on 06.12.2012. It is further stated in the counter that Director of Revenue Intelligence had finalised the investigation on 31.07.2012 and prepared the show cause notice on 23.08.2012 and on account of the pendency of the litigation, show cause notice was issued on 06.12.2012 and as such, it cannot be said that the notice has been issued beyond 90 days and prayed for the dismissal of the Writ Petition. 2.1. The learned Judge, after taking note of the rival submissions and on a careful scrutiny and analyse of the materials found that the litigation pending before this Court pertains only to the suspension of the Customs House Agency granted in favour of the the respondent /writ petitioner and it has nothing to do with the initiation of proceedings under 22 of the Custom House Agents Licensing Regulations 2004 and as such, the period in which the time has been elapsed on account of the pendency of the litigation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other and said fact has been taken into account by the learned Judge and rightly, quashed the impugned notice issued by the appellant/ respondent. 5. This Court has paid its best attention to the rival submissions of the either side and also perused the materials placed before us. 6. In the case of the Commissioner of Customs Vs The Customs Excise and Service Tax, reported in 2014-3-L.W.632, when the similar issue came up for consideration as to whether the order of suspension passed under Regulation 22 of Customs House Agents Licensing Regulations 2004, the time limit is to be complied with or not?, the Division Bench of this Court in which I am one of the parties (M.Sathyanarayanan,J) has considered the scope of Regulation 20(1) and 22(1). In paragraph No.25, we have observed that as per the notification and instruction dated 20.01.2014, the time limit has been prescribed in respect of the procedure contemplated under Regulation 22 and as per sub-regulation (1) of Regulation 22, the Commissioner of Customs shall issue 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 susp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... days of the detection of an offence. The Licensing authority shall take necessary immediate suspension action with fifteen days of the receipt of the report of the investigating authority. A post- decisional hearing shall be granted to the party within fifteen days from the date of his suspension. The Commissioner of Customs concerned shall issue an Adjudication Order, where it is possible to do so, within fifteen days from the date of personal hearing so granted by him 7. This Court in the above cited decision has also taken note of the decision reported in [(1996) 10 SCC 387)], Ranadey Mictronutrients Vs. Collector of Central Excise, wherein, it has been held that the Board Circular is binding on the Revenue and there cannot be any challenge on the ground of inconsistency with the statutory provision and also taken note of yet another decision reported in [(2014) 3 SCC 488, Commissioner of Customs, Calcutta and Others Vs Indian Oil Corporation Ltd., and another, which also laid down the similar proposition. 8. In the light of the fact that the Customs House Agent Licensing Regulation having statutory force and it is also reiterated in the above cited circular, this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Orissa that even when an alternative remedy has been availed of by a party but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an application under Article 32 before this Court for the same relief, normally the Court will not entertain the application under Article 32. But where in the parallel jurisdiction, the order is not a speaking one or the matter has been disposed of on some other ground, this Court has, in a suitable case, entertained the application under Article 32. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226 Therefore the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ petition on merits. 9. The learned Judge, on facts of the case has categorically found that despite an offence rep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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