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2015 (5) TMI 802 - CALCUTTA HIGH COURT

2015 (5) TMI 802 - CALCUTTA HIGH COURT - 2015 (321) E.L.T. 620 (Cal.) - 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 prin .....

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mine are only tentative in nature since I am minded to dispose of the writ 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 Cus .....

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Constitution of India. Accordingly, this writ application fails and is 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-na .....

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10 cartons of cigarettes of Indonesian origin having estimated value of ₹ 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 .....

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said Regulations to prevent further misuse of the customs brokers licence. 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 t .....

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tioner-company to be heard and to contradict the Section 108 statements. (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 o .....

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elied upon by the department but Mr. Baid was not offered for cross-examination 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 .....

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er of Customs nominated by him, a written statement of defence 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. (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 .....

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oceedings initiated by way of issuance of notice beyond the period of 90 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; i .....

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etween the parties. He submitted that the proceedings were conducted by 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 regulati .....

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In this connection, he relied on a decision of the Hon ble Supreme Court 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 .....

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ision of the Hon ble Supreme Court in the case of M/s. Kanungo & Co.-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 t .....

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e Customs Authorities. Accordingly we hold that there is no force in the 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 mu .....

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t applied in a vacuum without reference to the relevant facts and circumstances 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 t .....

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tative in nature since I am minded to dispose of the writ petition on the 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 .....

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