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TMI Blog2017 (5) TMI 1283X X X X Extracts X X X X X X X X Extracts X X X X ..... initially passed on 30th December 2016 (CB Order No. 11/2016) by the Commissioner of Custom (Airport & Administration) on 30th December 2016, and subsequently confirmed by the same authority on 27th January 2017 upon giving post-decisional hearing. 2. The appellant at the material time was rendering the services for customs clearance of goods to different importers and exporters. Suspension of the appellant's license was in relation to transactions of certain importers, for whom the appellant acted as a customs house agent. The substance of allegations in relation to such import transactions was that branded glass chatons were being imported under the guise of "artificial stones" or "imitation stones", by misdeclaring the description as also the value of the imported items. There are allegations of clearing several consignments in different names using fictitious and non-existing Import-Export Codes. The bills of entry forming the subject of dispute related to the year 2009- 10. The Directorate of Revenue Intelligence had started investigation in connection with such imports at Kolkata, Chennai and New Delhi. In course of such investigation, the appellant's officer was also invest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the Customs Broker License of the appellant on 30th December, 2016, taking cognizance of the adjudication order bearing no.833/2016-AIR dated 26.09.2016. Operative part of this suspension order reads:- " (i) In view of the findings above I hereby order the suspension of CB Licence No.I-12 (Pan-AABCI3386BCH001) of M/s. Indo- Foreign (Agents) Pvt. Ltd. with immediate effect and until further orders under Regulation 20(2) of CHALR, 2004 [Now Regulation 19(1) of CBLR, 2013]. (ii) As per Regulation 20(3) of CHALR, 2004, as amended, [Now Regulation 19(2) of Customs Brokers Licensing Regulations, 2013] an opportunity is given to M/s. Indo- Foreign (Agents) Pvt. Ltd. or to their authorized representatives to appear before the Commissioner of Customs (Airport & Admn.) for a post-decisional hearing on 11.01.2017 at 03.30 p.m." 6. The suspension order was confirmed by the same authority on 27th January 2007 upon giving opportunity of hearing to the appellant. In that order, the order of suspension was directed to continue and proceeding for revoking the licence was directed to be initiated. It has been submitted before us by Mr. Chowdhury, learned Counsel for the appellant that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petition. The decision was delivered considering the aforesaid provision. Stand of the Customs Authorities before us, asserted by Mr. Banerjee, learned Counsel, however, is that the 2004 Regulations is not applicable in the case of the appellant. His submission is that Regulation 19 of 2013 Regulation is attracted in this case. This provision stipulates:- " 19. Suspension of licence. (1) Notwithstanding anything contained in regulation 18, the Commissioner of Customs may, in appropriate cases where immediate action is necessary, suspend the licence of a Customs Broker where an enquiry against such agent is pending or contemplated. (2) Where a licence is suspended under sub-regulation (1), the Commissioner of Customs shall, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs Broker whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs Broker." 9. As we have already observed, learned First Court had proceeded on the basis of application of 2004 Regulations. The 2013 Regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... received by the department in the month of December 2016. The implications are clear that the authorities treated the report of the adjudicatory authority to be report of the investigating authority. This reflects adherence to 2004 Regulations by the authorities. 10. As we have already observed, the learned Single Judge had dismissed the writ petition mainly on the ground that there was efficacious alternative remedy. The learned Single Judge repelled the appellant's plea that the order in original could not constitute report of the investigating authority. Clause 20(2) of 2004 Regulations provide:- "20 (2) Notwithstanding anything contained in sub-regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, within fifteen days from the date of receipt of a report from investigating authority, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated." 11. Contention of the appellant petitioner before the learned First Court was that the suspension order could not have been passed beyond fifteen days from the date of receipt of the show cause notice by the authority concerned. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detail before the statutory authority or before the learned Single Judge. In the judgment appealed against, the learned Single Judge accepted the Revenue's contention that the Order-in- Original constituted the report of the investigating authority. The limitation question is a jurisdictional issue and it is well within the power and jurisdiction of the Writ Court to examine that issue while testing validity of the action or order of a Revenue Authority even if there is an alternative remedy available to assail such an order of a statutory body. Respondent no.2 also had not examined this factor in detail in the order sustaining the order of suspension. No proper definition of the terms "offence report" under the 2013 Regulations or "report from the investigating authority" as employed in clause 20(2) of the 2004 Regulations has been brought to our notice by the learned counsel for the Revenue. It appears from the order of 27th January 2017 that the authority proceeded on the basis that the Show-cause notice as well as the order of adjudicating authority could fit this description. The reasoning in the order of suspension dated 27th January 2017 for not taking cognizance of the sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the appellant. 17. Having reached this finding, we direct that the part of the order dated 30th December, 2016 by which the appellant's licence was initially suspended and the composite order confirming the order of suspension and initiation of revocation proceeding dated 27th January 2017 shall not be given effect to by the authorities concerned. The action taken on the basis of those orders, to the extent the same suspends the appellant's licence or initiates revocation proceeding shall be permanently stayed. The authorities, however, shall be entitled to take a fresh decision on the question of suspension of the appellant's licence or revocation of the same upon giving opportunity to hearing to the appellant on the limitation issue raised by the appellant. The direction not to give effect to the suspension order of 30th December, 2016 shall be subject to the decision the authorities may take upon giving the appellant opportunity of hearing. The appellant shall be entitled to carry on its business under its subsisting license provided there is no other legal impediment in doing so, till fresh decision is arrived at by the concerned authority. Respondent No. 2 will inform all con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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