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TMI Blog2019 (4) TMI 1713X X X X Extracts X X X X X X X X Extracts X X X X ..... The impugned notice has been issued on 13.08.2018 - In the present case, though there was an order of stay passed on 24.04.2018 by this court, there was nothing that prevented the respondent from issuing the show cause notice under Regulation 20 (i) of the CBLR, 2013, within the period of 90 days since the aforementioned period commences from the date of offence report, which, in this case, is 27.02.2018. The Regulation stipulates a seamless procedure commencing from the date of offence report and there is nothing in the regulation that indicates distortion of this time frame by intervening events. Where a provision/regulation spells out a specific period of limitation, such period is mandatory and any exclusion there from should also be provided for specifically. Petition allowed. - W.P.No.24239 of 2018 And W.M.P.No.28243 of 2018 - - - Dated:- 25-2-2019 - Hon ble Dr. Justice Anita Sumanth For the Petitioner : Mr.V.Pramila For the Respondent : Mr.G.M.Syed Nurallah Sheriff ORDER The writ petitioner seeks the issuance of a writ of certiorari calling for the records of the respondents in Notice bearing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al dated 06.04.2018 was passed ordering the continuation of suspension ordered on 14.03.2018. 7. As against the same, a Writ Petition in W.P.No.9395 of 2018 was filed by the petitioner. An order of stay of the order of suspension was granted by this Court on 24.04.2018. A petition to vacate stay was filed along with a counter affidavit by the 1st respondent, the Commissioner of Customs, on 13.06.2018. On 09.07.2018, the writ petition was disposed of by this Court directing the petitioner to file an appeal before the Customs, Excise and Sales Tax Appellate Tribunal (CESTAT) in so far as the order of suspension dated 06.04.2018 was statutorily appealable. The contents of the aforesaid order, insofar as it is relevant to the issue that arises in this case is as follows: 19. Thus, for the above reasons, this writ petition is dismissed holding that the impugned order of suspension passed under Regulation 19(2) of the Regulations cannot be held to be invalid merely because the power was exercised only after the receipt of the offence report dated 27.02.2018 and the Court is convinced that the exercise of power cannot be faulted as not being the one where imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .M.Ahamed Co.Vs. Commissioner of Customs (Imports) Chennai, [Reported in 2014 (309) ELT 433 (Mad)]; (vi) Commissioner of Customs, Tuticorin Vs. MKS Shipping Agencies Pvt. Ltd. [Reported in 2017 (348) ELT 640 (Mad)]; (vii) Sanco Trans Ltd Vs. Commercial of Customs Sea Port/Imports Chennai, [Reported in 2015 (322) ELT 170 (Mad)]; (viii)A.P.Enterprises, Vs. Commissioner of Customs(General) [Reported in 2017 (352) ELT 290 (Del)]; (ix) Commissioner of Customs (General) Vs. Atharva Global Logistics [reported in 2016 (338) ELT 682 (Del)]; (x) Impexnet Logistic Vs. Commissioner [Reported in 2016 (338) ELT 347 (Del)]; (xi) Overseas Air Cargo Services Vs. Commissioner [reported in 2016 (340) ELT 119 (Del)]; (xii) Santon Shipping Services Vs. Commissioner of Customs, Tutocorin [In CMA No. 730/2016 and CMP No.5921/2016 dated 13.10.2017]. 11. Per contra, Mr.G.M.Syed Nurullah Sheriff, learned senior standing counsel for the respondents defends the impugned notice of suspension by way of detailed counter as well as oral submissions. 12. He outlines the activitie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that in case the Commissioner of Customs passes an order for continuing the suspension, the further procedure thereafter shall be as provided in regulation 20. 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 licence or impose penalty requiring the said Customs Broker to submit within thirty days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs Broker desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs.... 16. The issue as to whether the 90 day time limit for issuance of notice for revocation of licence under Regulation 20 (1) is mandatory or directory is no longer res integra. There are a series of decisions of the courts that have decided the same holding it to be mandatory. The revenue does not dispute this posi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that an independent right is issued to the Commissioner to initiate action de hors the enquiry under other Regulations and the Customs Act. The regulations do not only contemplate action against the erring Brokers but also contemplates timely action; No doubt that action is to be initiated against the erring brokers as laid down by this Court in the case of Kamatchi Agencies cited supra, but the same has to be in strict compliance with provisions. The law of limitation is common to both the parties. The provision not only enables the respondent to levy penalty, but also empowers the respondent to revoke the license, which is an extreme step, curtailing the right to carry on any trade or profession as guaranteed by the Constitution of India. The object behind such a provision can only imply the following; (1) the truth must be culled out at the earliest point in the interest of not only the Customs Broker or for that matter of the department also, (b) that such unlawful activities must be curbed at the earliest point by revoking the licence, (c) unless a time limit is prescribed, action would not be initiated. (49) The purpose for which such time limit has been pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a Court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226 it would not be appropriate for the Court to entertain the writ petition. The Rule is based on public policy but the motivating factor is the existence of a parallel jurisdiction in another Court. But this Court has also held in Chandra Bhan Gosain Bhan V. State 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rescribed is mandatory, as has been declared by the Courts of law, it cannot be stated that, because of the other issues that is the merit of the case, this mandatory requirement of the limitation can be ignored. 43. It is not the case of the 1st respondent that the 90 days limitation contemplated under Regulation 22 (1), is directory. It is also not the case of the 1st respondent that the show cause notice was issued within the limitation period of 90 days from the date of offence report. 44. Since the offence report was dated 22.09.2010 and the show cause notice, admittedly, was issued only on 18.11.2011, there can be no doubt that the said show cause notice was issued well beyond the period of limitation of 90 days. 45. Whatever be the claim and counter claim on the merits, in this appeal can, in our view, they get shadowed by the failure on the part of the revenue in not acting in time, by issuing the show cause notice, within the period as contemplated under Regulation 22 (1) of CHALR, 2004. 46. Therefore, we are of the considered view, and in fact have no hesitation to hold so that, the Revenue has not issued and the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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