9911796707
TMI Blog2018 (1) TMI 879X X X X Extracts X X X X X X X X Extracts X X X X ..... of counsel, taken up the writ petition for final hearing and heard arguments. 2. The petitioner has impugned show cause notice dated 14.07.2017 issued by the Principal Commissioner under Regulation 20 of the Customs Broker Licensing Regulations, 2013 ( 2013 Regulations , for short), inter alia, on the ground that it has been issued after expiry of limitation period of 90 days from the date of receipt of the offence report. Hence, it is bad in law, illegal and should be quashed. 3. The petitioner has also challenged legality and correctness of order dated 12.06.2017 passed by the Commissioner confirming the order of the suspension of licence in terms of Regulation 19 (2) of the 2013 Regulations. 4. In order to appreciate controversy, we would like to reproduce Regulations 20 and 22 of the 2013 Regulations which read as under:- 20. Procedure for revoking licence or imposing penalty . (1) The Commissioner of Customs shall issue a notice in writing to the Customs Broker within a period of ninety days from the date of receipt of an offence report, stating the grounds on which it is proposed to revoke the license or impose penalty requiring the said Customs Broker ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Customs Broker, pass such orders as he deems fit either revoking the suspension of the license or revoking the license of the Customs Broker or imposing penalty not exceeding the amount mentioned in regulation 22 within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-regulation (5) : Provided that no order for revoking the license shall be passed unless an opportunity is given to the Customs Broker to be heard in person by the Commissioner of Customs. X X X 22. Penalty.- A Customs Broker, who contravenes any provisions of these regulations or who fails to comply with any provision of these regulations shall be liable to a penalty which may extend to fifty thousand rupees. 5. The Delhi High Court in Overseas Air Cargo Service v. Commissioner of Customs, 2016 (340) ELT 119 (Del.), Indair Carrier Pvt. Ltd. v. Commissioner of the Custom (General) 2016 (337) ELT 41 (Del.) and Commissioner of Customs v. S. K. Logistics 2016 (337) ELT 39 (Del.), has held that the time period of 90 days mentioned in Regulation 20(1) of the 2013 Regulations is mandatory and sacro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be treated as the offence report, and therefore notice issued under Regulation 20(1) dated 14.07.2017 is within time. 10. Decision in M/s A. M. Ahamed (supra), relates to Regulation 20 of the Customs House Agent License Regulations 2004 ( 2004 Regulations , for short) which were applicable prior to enactment and enforcement of 2013 Regulations. The expression offence report was also used in the 2004 Regulations. Interpreting the said expression, it was observed in M/s A. M. Ahamed (supra) as under:- 17. Unfortunately, the Regulations do not define what an offence report is and the Regulations do not even state as to how an offence report is to be sent. The Regulations do not even use the expression offence report anywhere else other than Regulation 22(1). Even the grounds on which a licence can be revoked or suspended, mentioned in Regulation 20(1), do not include the definition of the expression offence or offence report. There are only three grounds on which a licence can be suspended or revoked under sub-regulation (1) of Regulation 20. Regulation 20(1) reads as follows:- 20. Suspension or revocation of licence. (1) The Commissioner of Customs may, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ced within a time limit and also concluded within a time frame, I am of the view that the show cause notice issued to the petitioner on 08.05.2010 with a copy marked to the first Respondent should be taken as the date of receipt of the offence report. Consequently, the period of 90 days should commence only from that date. If so calculated, the impugned proceedings have obviously been initiated beyond the period of 90 days. 11. 2013 Regulations have repealed 2004 Regulations. The authorities, while enacting 2013 Regulations, did not deem it appropriate to define the term offence report and had used the same term in Regulation 20 of the 2013 Regulations. 12. The aforesaid judgment and reasoning explaining the expression offence report was followed by another Single Judge of the Madras High Court in Patriot Freight Logistic System (supra). 13. It may be also relevant to reproduce, the factual assertion made by the respondents in the counter affidavit filed to the W.P. (C) 3265/2017. In the said counter affidavit, the respondents had pleaded:- It is submitted that the Prohibition Order vide o-i-o no.13/SM/ Prohibition/2017 dated 15.03.2017 was issued on the basis o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Broker or a F card holder or a G card holder as the case may be under these regulations which would render him unfit to transact business under these regulations . The aforesaid definition in the draft regulation supports the view taken by the Madras High Court. 15. In view of the aforesaid position, we record that the suspension order dated 31.03.2017 was based upon the offence report, and therefore the show cause notice under Regulation 20, dated 14.07.2017, would be clearly barred by the limitation as it was issued more than 90 days after the offence report was submitted. 16. We accordingly allow the present writ petition and quash the show cause notice dated 14.07.2017 initiating proceedings under Regulation 20 of the 2013 Regulations, as it has been issued after 90 days from the date of receipt of offence report. The order confirming suspension dated 12.06.2017 would therefore become ineffective and infructuous. 17. However, we deem it appropriate and necessary to clarify that the show cause notice under Regulation 20 of the 2013 Regulations has been quashed on technical ground and not on merits. Therefore quashing of show cause notice would not have any eff ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
