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2016 (11) TMI 135 - MADRAS HIGH COURT

2016 (11) TMI 135 - MADRAS HIGH COURT - TMI - Scope of Regulation 20(1) and 22(1) of Customs House Agents Licensing Regulations 2004 - suspension of CHA licence - whether the order of suspension passed under Regulation 22 of Customs House Agents Licensing Regulations 2004, the time limit is to be complied with or not? - Held that: - the Customs House Agent Licensing Regulation having statutory force and it is also reiterated in the Circular No.9/2010- Cus., dated 08.04.2010, this Court is of the .....

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t there is no irregularity or error apparent on the face of the record, which warrants interference and finds no merits, in this Writ Appeal and therefore, it is dismissed. - W. A. (MD) No. 260 of 2013 M. P. (MD). No. 1 of 2013 - Dated:- 24-10-2016 - M. Sathyanarayanan And J. Nisha Banu, JJ. For the Appellant : Mr. R. Nandakumar For the Respondent : Mr. P. Saravanan and Mr. M. Saravanan JUDGMENT [ Judgment of the Court was delivered by M. Sathyanarayanan , J. ] The respondent / Revenue in W.P.(M .....

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y out this agency work, he obtained license in the year 2004 under Section 146 of the Customs Act 1962 and CHALR 2004 Regulations. The nature of the activities carried on by the said Concern is relating to entry or departure of a conveyance or the import or export of goods in the Customs House Station and their role is limited to the works of preparing documents in the form of prescribed documents under the Customs Act and present the same before the Officer concerned of Customs for assessment t .....

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rocedures prescribed under Regulation 22. The proceeding under Regulation 20(1) and Regulation 20(2) are independent of one another by the virtue of the non-obstante clause in Regulation 20(2). It is further stated by the respondent /writ petitioner that a show cause notice was issued by the appellant/respondent with regard to the certain allegations committed by the respondent/writ petitioner and based on which, the appellant/respondent in the Writ Petition had passed on an order, dated 12.09.2 .....

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eived by the appellant on 29.08.2012 and the impugned show cause notice should have been issued on or before 27.11.2012, whereas, it was issued on 06.12.2012 and as such, the said notice, on the face of it, is unsustainable and prays for quashment of the notice issued by the appellant/respondent. 2.1. The appellant/respondent had filed a counter affidavit stating among other things that challenging the suspension order, the respondent/writ petitioner had filed an appeal before the CESTAT and sta .....

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ector of Revenue Intelligence had finalised the investigation on 31.07.2012 and prepared the show cause notice on 23.08.2012 and on account of the pendency of the litigation, show cause notice was issued on 06.12.2012 and as such, it cannot be said that the notice has been issued beyond 90 days and prayed for the dismissal of the Writ Petition. 2.1. The learned Judge, after taking note of the rival submissions and on a careful scrutiny and analyse of the materials found that the litigation pendi .....

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ed beyond the period of 90 days from the date of offence report as stipulated under Section 22(1) of CHALR and therefore, quashed the show cause notice vide his order, dated 04.01.2013 and challenging the legality of the same, the Revenue has filed this Writ Appeal. 3. Mr.Nandakumar, learned Standing Counsel appearing on behalf of the appellant/respondent would vehemently contend that it is only a show cause notice and the respondent / writ petitioner can very well respond to the same and in the .....

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a directory in nature and not mandatory and as such, the findings of the learned Judge that the impugned show cause notice was issued beyond the period of 90 days from the date of receipt of offence report is, on the face of it, unsustainable and prays for quashment of the order impugned in this Writ Appeal. 3.1. In support of his contention, he has placed reliance upon the judgments reported in AIR 1952 SC 181, Dattatraya Vs. State of Bombay (Constitution Bench), (1998) 7 SCC 123, N.Balakrishn .....

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12.2012, which is beyond 90 days and the interim suspension passed under Regulation 20(2) of the Custom House Agents Licensing Regulations 2004 has nothing to do with the action to be taken under Regulation 22(1) of the Act as both are independent of each other and said fact has been taken into account by the learned Judge and rightly, quashed the impugned notice issued by the appellant/ respondent. 5. This Court has paid its best attention to the rival submissions of the either side and also pe .....

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22(1). In paragraph No.25, we have observed that as per the notification and instruction dated 20.01.2014, the time limit has been prescribed in respect of the procedure contemplated under Regulation 22 and as per sub-regulation (1) of Regulation 22, the Commissioner of Customs shall issue in writing to the Customs House Agent within ninety days from the date of receipt of offence report, stating that the grounds on which it is proposed to suspend or revoke the license and require the said CHA .....

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er Regulation 22: 7.1.The present procedure prescribed for completion of regular suspension proceedings takes a long time since it involves inquiry proceedings, and there is no time limit prescribed for completion of such proceedings. Hence, it has been decided by the Board to prescribe an overall time limit of nine months from the date of receipt of offence report, by prescribing time limits at various stage of issue of show cause notice, submission of inquiry report by the Deputy Commissioner .....

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te suspension action against a CHA is required to be taken by a Commissioner of Customs under regulation 20(2), there is no need for following the procedure prescribed under Regulation 22 since such an action is taken immediately and only in justified cases depending upon the seriousness or gravity of offence. However, it has been decided by the Board that a 'post-decisional hearing' should be given in all such cases so that errors apparent, if any, can be corrected and an opportunity fo .....

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investigating authority. A post- decisional hearing shall be granted to the party within fifteen days from the date of his suspension. The Commissioner of Customs concerned shall issue an Adjudication Order, where it is possible to do so, within fifteen days from the date of personal hearing so granted by him 7. This Court in the above cited decision has also taken note of the decision reported in [(1996) 10 SCC 387)], Ranadey Mictronutrients Vs. Collector of Central Excise, wherein, it has bee .....

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e cited circular, this Court is of the view that 90 days prescribed under Regulation 22(1) is mandatory in nature and cannot be treated as directory. The judgments relied upon by the learned Counsel for the appellant are not applicable to the facts and circumstances of the case. 9. Insofar as the submission of the learned Counsel for the appellant that since the impugned notice is a show cause notice, it cannot be challenged by filing a Writ Petition and remedy open to the respondent/ Writ Petit .....

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y. In this context, it is useful to refer to the decision of the judgment reported in (2004) 7 SCC 166, S.J.S.Busniess Enterprises (P) Ltd Vs. State of Bihar and Others, wherein, it has been held as follows:- Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable, the question still remains whether the filing .....

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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 bu .....

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r ground, this Court has, in a suitable case, entertained the application under Article 32. Instead of dismissing the writ petition on the ground that the alternative remedy had been availed of, the Court may call upon the party to elect whether it will proceed with the alternative remedy or with the application under Article 226 Therefore the fact that a suit had already been filed by the appellant was not such a fact the suppression of which could have affected the final disposal of the writ p .....

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