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Mishra & Mishra Agencies & Anr. Versus Union of India & Anr.

2016 (9) TMI 833 - CALCUTTA HIGH COURT

Maintainability of writ petition - alternative remedy of appeal under Sec. 129A of the Customs Act, 1962 - assorted confectionary items - principles of natural justice - revocation of CHA license under Regulation 20(1) of the CHALR 2004 (replaced by Regulation 18 of the Customs Brokers Licencing Regulations, 2013 - forfeiture of security deposit - whether the writ petition is maintainable when the alternative remedy of appeal is available? - Held that: - the decision in the case Whirlpool Corpor .....

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normally exercise its writ jurisdiction. The High Court will require the aggrieved party to exhaust the alternative remedy before the Court intervenes by way of judicial review. - 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 appeal is a more comprehensive remedy in which all issues including factual issues and sufficiency or otherwise of the evidence on record can be gone into. W .....

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Union of India [2015 (5) TMI 802 - CALCUTTA HIGH COURT] is followed. - Whether a writ petition can be dismissed on the ground of alternative remedy if the same has been admitted for hearing? - Held that: - it is not the legal position that once a petition is admitted, it cannot be dismissed on the ground of alternative remedy. The decision in the case of State of Uttar Pradesh-vs.-Uttar Pradesh Rajya Khanij Vikas Nigam Sangharsh Samiti [2008 (5) TMI 642 - SUPREME COURT] is followed. - Th .....

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ismissed - decided against petitioner. - WP 1193 of 2013 - Dated:- 15-9-2016 - Justice Arijit Banerjee For the Petitioner : Mr. Rizu Ghoshal, Adv. Mr. Sayantan Bose, Adv. Mr. R. Dutta, Adv. Ms. S. Purkayastha, Adv. For the Respondent : Mr. Sharaf, Adv. JUDGEMENT Arijit Banerjee, J:- (1) In this application the writ petitioners challenge an order dated 24 October, 2014 passed by the Commissioner of Customs (Airport & Administration), Calcutta in a proceeding against the petitioner no. 1 under .....

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itioners:- (2) At all material times, the petitioner no. 1 operated as a Customs House Agent. On 21 June, 2004 the Commissioner of Customs, Calcutta issued a CHA licence No. M-41 to the petitioner firm under Regulation 10(1) of CHALR, 1984 with validity period up to 2014. On the basis of such licence the petitioner firm carried on customs house agency business in Calcutta and Bombay. (3) The petitioner no. 2 is a senior partner of the petitioner no. 1. The petitioner no. 2 also carries on busine .....

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the imported goods. The said goods were detained by the Directorate of Revenue Intelligence (DRI) on the ground that the said import was made for one Ravi Kumar for monetary consideration. A show cause notice was issued by the Addl. Commissioner of Customs and by an order dated 20 August, 2009, the authorities confiscated the imported goods with an option to the importer to get the same released by payment of fine of ₹ 1.25 lacs and also imposed penalty of ₹ 1 lac on the importer. ( .....

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are lying with the Mumbai Customs Authorities. (7) By a memo dated 21 November, 2008, the Commissioner of Customs (General), Mumbai Customs House, suspended the CHA Licence of the petitioner no. 1 at Mumbai for alleged irregularities in connection with the aforesaid import. The petitioners challenged the said memo before this Court by filing WP 312 of 2009. The Learned Judge held that this Court did not have territorial jurisdiction in the matter and disposed of the writ petition with liberty t .....

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10 was issued by the Calcutta Customs to the petitioner no. 1 under Regulation 22(1) of the CHALR, 2004 calling upon the petitioner no. 1 to show cause as to why the CHA Licence held by the petitioner should not be revoked. Such notice was issued on the basis of incorrect allegations. The petitioner no. 1 duly replied to the said show cause notice by letter dated 21 March, 2011 dealing with and refuting the allegations in the show cause notice. A purported enquiry was held before the Enquiry Off .....

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copy of the enquiry report to the petitioner firm with liberty to make representation in respect of the enquiry report. The petitioner duly submitted the representation specifically contending, inter alia, that the enquiry proceeding has been conducted in violation of the principles of natural justice. (11) By the impugned order, the respondent no. 2 mechanically upheld the findings of the Enquiry Officer in respect of the charges relating to violation of Regulation 13(a) of the CHALR, 2004, wi .....

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t the time of hearing which was clear violation of the principles of natural justice. (iii) The purported finding of the respondent no. 2 that the petitioner no. 1 was guilty of violation of Regulation 13(a) of the CHALR, 2004 is based on no evidence and is perverse. (iv) No document from the Assessing Officer complaining that there had been failure on the part of the petitioner no. 1 to produce the Letter of Authority at any stage during processing of the bill of entry was produced or disclosed .....

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gment the Hon ble Apex Court held that it is true that normally before a petition under Art. 226 of the Constitution is entertained, the High Court would insist that the party aggrieved by the order of a quasi-judicial Tribunal should have recourse to the statutory authorities, which have power to give relief. But that is a rule of practice and not of jurisdiction. In appropriate cases, the High Court may entertain a petition even if the aggrieved party has not exhausted the remedies available u .....

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7. At paragraph 7 of the judgment the Hon ble Apex Court observed that the rule of exclusion of jurisdiction by availability of an alternative remedy is a rule of discretion and not one of compulsion. Following its earlier decision in the case of Whirlpool Corporation ((1998) 8 SCC 1), the Hon ble Supreme Court reiterated that in an appropriate case in spite of availability of an alternative remedy, the High Court may still exercise its writ jurisdiction in at least three contingencies: (i) wher .....

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f natural justice causing serious prejudice to the petitioners, thus, warranting interference by this Court. Contention of the respondents:- (14) Although a detailed affidavit-in-opposition has been filed on behalf of the respondent no. 2 giving particulars of the alleged irregularities and illegalities committed by the petitioners and seeking to justify the revocation of the CHA Licence of the petitioner no. 1, at the time of hearing Learned Counsel for the respondents primarily urged the point .....

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ti Carbon Ltd., 2012 (278) ELT 26 (SC). In that case, the Hon ble Apex 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 fora and modes of seeking remedy are excluded. (16) Learned Counsel also relied on a decision of this Court in the case of Nepa Agency Co. Pvt. Ltd.-vs.-Union of India, 2015 (321) .....

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ing the power of judicial review is concerned not with the decision of the concerned authority but with the procedure that the authority has followed in arriving at the decision. What is under scrutiny is not the merits of the decision but the decision making process. Generally, the extraordinary power under Art. 226 of the Constitution is exercised by the High Courts in those cases where the authority has acted contrary to statutory provisions or in violation of fundamental principles of judici .....

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were given full opportunity of explaining/refuting the charges of irregularity/illegality levelled against them. The Writ Court does not sit in appeal over the decision of an authority and will not go into the question of sufficiency or otherwise of the evidence on the basis whereof the order has been passed. In my opinion, it cannot be said that the order is passed on the basis of no evidence and is therefore perverse. However, I make it clear that these observations of mine are only prima fac .....

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the High Court would not normally exercise its writ jurisdiction. The High Court will require the aggrieved party to exhaust the alternative remedy before the Court intervenes by way of judicial review. Authorities for this proposition are legion and as an illustrative case one may refer to the decision of the Hon ble Supreme Court in the case of Whirlpool Corporation-vs.- Registrar of Trade Marks (supra). (19) In the case of Nepa Agency Co. Pvt. Ltd. (supra), this court held that the customs l .....

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he said Regulations may challenge such order by way of appeal under Sec. 129A of the Customs Act before the CESTAT. The appeal as provided for, in my opinion, is an efficacious alternative remedy available to an aggrieved party like the petitioner no. 1. In fact, I am of the view that the appeal is a more comprehensive remedy in which all issues including factual issues and sufficiency or otherwise of the evidence on record can be gone into. In my opinion, when a statute is a complete code in it .....

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