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M/s. Nepa Agency Co. Pvt. Ltd & Anr Versus Union of India & Ors.

2015 (5) TMI 802 - CALCUTTA HIGH COURT

Suspension of license - Lending of license to other person - Smuggling of cigarettes in the name of import of dining sets - Held that:- The power under Article 226 of the Constitution of India is an extraordinary power and should be exercised by the High Courts only in those cases where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions w .....

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rit petition on the grounds stated hereinafter.

The Customs law is a complete code by itself. The Customs Act and the rules and bye-laws framed thereunder constitute a comprehensive and exhaustive code. The impugned order in the instant case has been passed by the Commissioner of Customs in exercise of his power under the Customs Brokers Licensing Regulations, 2013 which are framed under Article 146 (2) of the Customs Act, 1962. Regulation 21 provides that a Customs Broker who is aggr .....

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dismissed. - Decided against appellant. - WP 205 of 2015 - Dated:- 13-5-2015 - Arijit Banerjee, J. For the petitioner : R. K. Chowdhury, Adv. For the respondent : S. B. Saraf, Adv., S. K. Saha, Adv. JUDGMENT Arijit Banerjee, J.: (1) The petitioner no. 1 is a Customs House Agent carrying on business as clearing and forwarding agent. Under the Customs Broker Licensing Regulations, 2013, the Customs House Agents have been re-named as Customs Brokers. The petitioner holds Customs House Agent license .....

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₹ 4.35 crores were found concealed behind 80 dining sets. The declared importer and Customs House Agent were M/s. A.K. International, Moradabad, Uttar Pradesh and the writ petitioner no. 1 herein respectively. During preliminary investigation it was found that the declared Customs House Agent namely the petitioner no. 1 did not actually act as the agent but allowed some unauthorised persons to use its licence and name for clearance of the subject consignment. (3) By an order dated 25th Jul .....

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ce. With those observations, the Commissioner of Customs suspended the operation of the customs brokers license held by the petitioner no. 1 with immediate effect. (4) Inquiry was conducted against the petitioner-company and the suspension of license was confirmed by an order dated 11th September, 2013. (5) Being aggrieved, the petitioner-company challenged the order of suspension of licence by filing WP No. 153 of 2014 in this Court. Before this Court it was urged by the petitioner-company that .....

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(7) Pursuant to the said order of this court the Commissioner of Customs (Airport and Administration) reviewed the earlier suspension order by giving an opportunity to the petitioner-company to be heard and to contradict the statements under Section 108 of the Customs Act. By an order dated 25th November, 2014 the Commissioner of Customs confirmed the earlier order suspending the licence of the petitioner-company in terms of the Regulation 19 (2) of the Customs Brokers Licensing Regulations, 20 .....

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ination by the representative of the petitioner-company. This was a blatant violation of principles of natural justice. Secondly, he submitted that no opportunity was given to the petitioner company to make submission on merits including dealing with statements recorded during examination of witnesses. This was also in breach of principles of natural justice. Thirdly, he argued that there has been violation of regulation 20 of the Customs Brokers Licensing Regulations 2013 (in short CBLR, 2013). .....

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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. (9) Mr. Chowdhury submitted that the offence report was received by the respondent authorities on 11th July, 2013 as would appear from the order of suspension of licence dated 25th July, 2013. However, the show cause notice was issued on 11th February, 2014 that is much beyond 90 days from the date of receipt of offence report. .....

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days from the date of receipt of offence report will stand vitiated. In the light of the aforesaid submissions Mr. Chowdhury prayed for quashing of the order impugned. (10) Appearing on behalf of the respondents, Mr. S.B. Saraf, Ld. Advocate disputed the submissions made on behalf of the petitioner-company. Firstly he submitted that Mr. Manoj Baid was duly given notice to appear in the proceeding but he failed to turn up; in fact, he disappeared from the scenario altogether. Mr. Baid s licence .....

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rigorously following the principles of natural justice. Thirdly, Mr. Saraf submitted that the period of 90 days mentioned in regulation 20 of the CBLR, 2013 is only directory and issuance of notice beyond the period of 90 days from the date of receipt of offence report does not render the proceedings bad. (11) The main point urged by Mr. Saraf was one of availability of an efficacious alternative remedy. He referred regulation 21 of the CBLR 2013 which is set out hereunder:- A Customs Broker, wh .....

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in the case of Union of India-vs.-Guwahati Carbon Ltd. Reported in 2012 (278) ELT 26. In that case the Hon ble Supreme Court observed that when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner and all the other forums and modes of seeking remedy are excluded. Mr. Saraf also relied on a division bench judgment of the Gujarat High Court in t .....

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-vs.-Collector of Customs reported in (1973) 2 SCC 438. Ld. Counsel relied on paragraph 12 of the judgement which is set out hereunder:- 12. We may first deal with the question of breach of natural justice. On the material on record, in our opinion, there has been no such breach. In the show cause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation. The complaint of the appell .....

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third contention of the appellant. (13) Mr. Saraf also relied on a decision of the Hon ble Supreme Court in the case of A.S. Motors Pvt. Ltd.-vs.-Union of India rendered in Civil Appeal No. 1517 of 2013 (arising out of SLP (C) No. 2490 of 2008). In the said case the Hon ble Supreme Court observed that the principles of natural justice have undergone a sea change. Presently the principle of law is that some real prejudice must have been caused to the complainant. Court has shifted from its earli .....

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stances of the case. It is no unruly horse. It cannot be put in a strait-jacket formula. (14) I have considered the rival contentions of the parties. (15) The power under Article 226 of the Constitution of India is an extraordinary power and should be exercised by the High Courts only in those cases where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invo .....

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e grounds stated hereinafter. (16) In Titaghur Paper Mills Co. Ltd.-vs.-State of Orissa reported in (1983) 2 SCC 433, a three Judges Bench of the Hon ble Supreme Court held that where an Act provides for a complete machinery to challenge an order of assessment, the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. Where right or liability is created by a statute which gives a special remedy for enfo .....

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