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TMI Blog2004 (4) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... Law. 2.It appears that on detection of the fraud and forgery and consequently the evasion of customs and other duties, the petitioners being agent paid the entire duty which would have been payable but for this advance licence. But then the petitioners have not been spared by the Revenue Department and he has been served with the show cause notice under Section 124 of the Customs Act in the month of March, 2003. 3.Perhaps in sequel to the aforesaid action under the regulatory measure the petitioners have sought to be brought to book and that is why it is said a proceeding is contemplated for passing appropriate order disciplining the petitioners as an agent for not discharging their duty, in violation of the various provisions of the Regulation, 2004. 4.The provisions of Regulation, 1984 stands superseded in view of the present Regulation, 2004. As such the petitioners are sought to be proceeded with under the present Regulation 20, sub-section (2). The elaborate procedure has been laid down to discipline the agent which has been provided in Regulation 20, read with 22. 5.It appears under sub-regulation (2) of Regulation 20, an emergent power has been conferred upon the Commi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation 20(8) is read together with Section 129A, it will appear that this order is not an appealable order and the Appellate Authority cannot entertain this matter. 9.Even assuming this is an appellate provision, still then the power of judicial review cannot be taken away by the appellate provision and if litigant comes with a complaint, the impugned decision is arbitrary and mala fide and passed in breach of principle of natural justice which in its turn infringes fundamental right as guaranteed under Articles 14 and 19 of the Constitution of India this alternative remedy cannot be a bar. It is for the Writ Court in its wisdom in a fit case to entertain the writ petition but this jurisdiction cannot be circumscribed by any law. According to him, his client has been able to make out such case for which jurisdiction of this Court ought to be invoked under the public law field and in this case it is the only way out. 10.In support of his submissions on merit, he has cited a number of decisions of this Court in a case of this nature, wherein the guidelines has been laid down under what circumstances the aforesaid power under Regulation 20(2) this power can be exercised by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation would be an absurd proposition. In my view the order passed under sub-clause (8) Regulation 20 is an independent order and it does not depend upon any other order which might be passed under sub-regulation (7) of Regulation 22, because order under sub-regulation 20(8) can be passed irrespective of proceedings under Regulation 20 having been initiated because it could be passed even in contemplation of such proceedings. 14.Therefore, I am of the view that sub-regulation (8) of Regulation 22 covers the order of sub-regulation 20(2). According to me varieties of orders mentioned in Section 29A of the Act for appealability, are not exhaustive and the provision of Section 192A of the Customs Act had been adopted, for formation of an appellate forum. This has to be read along with Section 129A of the said Act, as if the same had been incorporated therein as part and parcel of the provision of Section 129A. Therefore, I am unable to accept the argument of Mr. Banerjee that the aforesaid provision does not apply in relation to this order and in fact Mr. Banerjee has placed an order of learned Tribunal which had entertained appeal of this nature. 15.Now the question remains as t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ties of the clearing agent so as to disable him from taking any further action in the matter, since, under a particular situation and under some given set of circumstances the requirement of immediate action may demand that the clearing agent may be immediately required to be prevented from working any further. The minimum that is required by the Commissioner to enable him to exercise such power is the spelling out of the circumstances in the order warranting the need to take such immediate action and to actually say that immediate action is indeed required in the matter. 19.Next in a judgment of ld. Single Bench reported in 1987 (28) E.L.T. 223 (Cal.) it has been observed that suspension of licence under Regulation 21(2) entails grave civil consequences. Therefore, hearing before making the suspension order is necessary. "It is true that Regulation 21(2) is silent on the point, but in the circumstances of the case, there should have been observance of the rule since there is nothing to show that in view of any extreme urgency of the matter such observance would have frustrated the entire cause. If the statute conferring power is silent with regard to the giving of a pre-decisiona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and circumstances have been spelt out for which such a drastic order could be passed at the threshold. On the face of this, I am of the view the authority concerned has passed not with the approach nor with mind of quasi judicial authority, not to speak of a judicial authority. It has been passed in a pre-judged mind. Therefore, the order cannot stand on the scrutiny of Article 14 of the Constitution of India. One has to be proceeded with as per the established procedure laid down in the Regulations, to say the least, it has not been followed. 23.Apart from the aforesaid as rightly submitted by Mr. Banerjee, there is no extreme circumstances nor there is any subsequent development for which this action was required to be taken nearly after one year when the authority concerned could have issued such order of suspension in contemplation of the regulatory measure at the time of issuance of the show cause notice under Section 24 of the Customs Act. Mr. Banerjee has rightly pointed out that the allegations made in the show cause notice under Section 24 of the said Act, and the basis of the impugned order are almost identically same, even word by word. Except addition of a portion of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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