TMI Blog2017 (5) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... nt on the limitation issue raised by the appellant. Appeal allowed by way of remand. - GA No. 942 of 2017, APOT No. 94 of 2017 - - - Dated:- 12-4-2017 - Aniruddha Bose And Arindam Sinha, JJ. Mr.Ramesh Kr. Chowdhury, Mr.Protyush Chatterjee, Advocates For Appellant Mr.Amitabrata Ray, Mr.Bhaskar Prasad Banerjee, Advocates For Customs Authority JUDGMENT Aniruddha Bose, J. 1. The appellant is holder of a licence, at present suspended, which was issued under the Customs House Agents Licensing Regulations, 2004. These Regulations of 2004 stood superseded by the Customs Brokers Licensing Regulations, 2013, which came into effect from 21st June, 2013. There has been subsequent amendment to the 2013 Regulations on 5th January, 2016 but for the purpose of adjudication of this appeal, this amendment is not of much significance. The present appeal is against the judgement of a learned Single Judge of this Court delivered on 22nd February 2017 dismissing the appellant s writ petition, in which the appellant questioned the legality of its order of suspension. The order of suspension was initially passed on 30th December 2016 (CB Order No. 11/2016) by the Commissioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant is concerned, it was called upon to explain why penalty would not imposed against it under Sections 112 and 114AA of the Customs Act, 1962. The adjudicatory authority found the allegations contained in the notice to show-cause substantiated and imposed penalties upon different noticees including the appellant. Against the appellant, penalty of ₹ 9,19,896/- was imposed under Section 112(a) of the Customs Act, 1962, and under the provisions of Section 114A of the Act, penalty was imposed for a sum of ₹ 8,07,705/-. The appellant has preferred an appeal against the order imposing penalty before the statutory Appellate Tribunal in Chennai. We find from pages 105 and 106 of the stay petition that copies of the show cause notice were marked, inter alia, to the appellant as well as the Principal Commissioner of Customs (Airport and Air Cargo Complex) at his office at 15/1, Stand Road, Kolkata-700001. 5. The order of the adjudicating authority was issued on 4th October 2016. The order, however, is dated 29th September 2016. The respondent no.2, Commissioner of Customs [Airport Administration] issued an order of suspending the Customs Broker License of the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to approach the Writ Court. Existence of a statutory alternative remedy is not a complete bar to a person applying under Article 226 of the Constitution of India. However once a person applies under Article 226 of the Constitution of India, where there is a statutory alternative remedy available, he has to sustain his case on the basis of the parameters available for the enquiry by the Writ Court. A quasi judicial order can be set aside if it is found to be passed in violation of the principles of natural justice, unreasoned, perverse without jurisdiction or to be in violation of the fundamental rights of the petitioner. In the present case, none of those grounds are substantiated. The order has not been demonstrated to be passed in violation of the principles of natural justice or unreasoned or perverse. The Authorities are within their jurisdiction to pass the impugned order. No right of the petitioner far less a fundamental right, has been established to be violated by the order impugned. 8. We find from the judgment of the learned single Judge that the applicability of Regulation 20(2) of the Regulations of 2004 was examined while dismissing the writ petition. The decisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich we shall refer to later in this judgment. In this background, we shall proceed on the basis that the order of suspension was issued under the aforesaid provision of the 2004 Regulations. Power of suspension under Regulation 20(2) of the 2004 Regulations is to be exercised by the Commissioner of Customs within fifteen days from the date of receipt of report from the investigating authority. Power under Sub-Clause (3) of the same provision could be exercised in cases where suspension has been effected under the circumstances contemplated in Sub-Clause (2). As per Regulation 19(1) of the 2013 Regulations, however, the timeframe of 15 days has not been stipulated, within which emergency power for suspension is to be exercised. We find the proceedings have been taken against the appellant following the 2004 Regulations only. Moreover, in the order of 27th January 2007, captioned Order-in-Original , while considering the limitation point, it has been observed that the show-cause notice was never received by the department and the authorities had proceeded on the basis that the order of the adjudicating authority (dated 26th September 2016, issued on 4th October 2016) was received b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the suspension of licence is an integral part of revocation proceeding and when revocation power cannot be resorted to beyond the timeframe prescribed in the aforesaid Regulations, the order of suspension also would be without jurisdiction. In this regard, Mr. Chowdhury s contention is that the show cause notice ought to constitute the offence report and the suspension order was issued much beyond the three months timeframe postulated in the aforesaid provision of the 2013 Regulations. 13. We, however, find that this point was not raised for adjudication before the learned Single Judge and was not considered while passing the order of suspension. Argument before the learned Single Judge was on interpretation of Regulation 20(2) of 2004 Regulations and argument of the parties before the learned First Court appears to have had been raised also on 2004 Regulations. In earlier part of this judgment, we have already, given our views on this point. 14. We have been taken by the learned counsel for the parties through the judgment of the learned First Court as well as the two orders of the statutory authority. In our opinion, there was no consideration of the limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d authority has observed:- what I find from the records, in that the order-in-Original bearing No. 833/2016-AIR dated 26.9.2016 passed by the Principal Commissioner of Customs, Chennai-VII. In the instant matter was received by the Department only in December 2016 16. Even if that order of the adjudicating authority is treated to be the report of investigating authority, considering the provisions of Regulation 20(2) of the 2004 Regulations, that observation in the order confirming suspension is inadequate to bring the initial suspension order issued on 30th December 2016 within the 15 days timeframe. We find that the authority issuing the order of suspension has not addressed the question of limitation in its proper perspective. Furthermore, there is no positive finding that the show cause notice was never received in the Kolkata office of the Commissioner Customs, in spite of a copy thereof being marked for the said authority. There is a presumption that an official act would be done in due course. The authority concerned has not properly dealt with, in our opinion, the jurisdictional issue of the suspension proceeding on the ground of the same being time-barred, as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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