TMI Blog2018 (3) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... rne in mind the object for issuing a show cause notice while issuing the impugned show cause notice. The purpose of issuing a show cause notice is to intimate the party, who has to show cause as to what is the allegation against the said noticee, for which he as to respond. Therefore, show cause notice apart from being clear and unambiguous and specific, it should also be issued with an open mind, which should be manifest on reading of the show cause notice. hat has been mentioned in the show cause notice is a proposal, whereby, the respondent proposed to take action in accordance with Regulation 20(1) of the CBLR. Thus, the petitioner has adequate opportunity to put forth all their contentions by answering to the show cause notice and on the grounds raised by the petitioner, the impugned show cause notice cannot be interfered with. Consequently, the writ petition is liable to be dismissed - petition dismissed. Renewal of CHA License - Held that: - Admittedly, as on the date, when the petitioner's application for renewal of the custom broker licence was rejected, there was no conclusive finding rendered against the petitioner holding that their conduct was not satisfactory wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d conditions stipulated in the regulation. The respondent issued show cause notice under Sections 28 and 124 of the Customs Act, 1962 to the importers, and the petitioner was one of the co-noticees. After about three months, the petitioner's custom broker licence was suspended by way of an order of interim suspension passed under Regulation 19(1) of the CBLR. The petitioner submitted their objections and sought for revocation of the order of interim suspension. The respondent issued a show cause notice dated 02.07.2014, under Regulation 20 of the CBLR, calling upon the petitioner to show cause as to why their licence should not be revoked and security deposited by them should not be forfeited or penalty should not be imposed under Regulation 318 of CBLR. 5. As mentioned above, the petitioner had sought for revocation of the interim suspension by filing written submissions on 30.06.2014, which were considered by the Commissioner of Customs and by Order-in-Original dated 06.08.2014, the order of interim suspension was revoked, making it clear that enquiry proceedings under Regulation 20(1) of the CBLR will follow (a show cause notice has been issued on 02.07.2014). Subsequentl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 8. It was further argued that, as the Commissioner of Customs has already adjudicated the show cause notice and passed an order, no useful purpose would be served in responding to the impugned show cause notice and therefore, the continuance of further proceedings pursuant to the impugned show cause notice is meaningless or unsustainable. 9. Further, the learned counsel for the petitioner contended that Regulation 20(1) mandates that show cause notice under CBLR has to be issued within 90 days of the receipt of the offence report and this having not been done in the petitioner's case, the notice is liable to be quashed. 10. So far as the relief sought for in W.P.No.17196 of 2015 is concerned, the learned counsel for the petitioner contended that the order rejecting the petitioner's application for renewal of licence is arbitrary and in violation of principles of natural justice. 11. Further, it is submitted that there is no conclusive adjudicated material to justify that the conduct of the petitioner is not satisfactory and in the absence of such material, the respondent ought to have renewed the petitioner's licence by taking into consideration that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce were referred to, to substantiate the said contention. The Revenue resisted the prayer sought for by the petitioner. The Court by order dated 15.09.2014, took note of the categorical assertions in paragraph 14 of the show cause notice dated 02.07.2014, pointed out that, at the stage of show cause notice, the respondent should only have an open mind and if his mind is closed with predetermined conclusions, the requirement of giving an opportunity to show cause becomes nugatory. Accordingly, the writ petition was allowed and the show cause notice was set aside, leaving it open to the respondent to issue fresh show cause notice, keeping the object of issuing show cause notice in mind. In furtherance to the liberty granted, the respondent issued the impugned show cause notice dated 31.10.2014. 18. The argument of the learned counsel for the petitioner is that, the notice is verbatim repetition of the earlier notice dated 02.07.2014, which was set aside and therefore, the impugned notice has to be quashed. 19. What is to be remembered is that, both the show cause notices are issued on the same set of facts and therefore, there is bound to be repetition of the factual averments. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was impugned before the High Court of Delhi on the ground that it was pre-meditated. The matter arose under CBLR and the show cause notice was issued under Regulation 20 of the CBLR. The Court pointed out that paragraph 26 in the said notice is only putting the petitioner to notice in terms of Regulation 20(1) of the CBLR and the notice further shows that complete opportunity is being granted to the petitioner to furnish evidence and an opportunity of personal hearing is also being granted. The Court distinguished the decisions in Oryx Fisheries Pvt. Ltd., (cited supra) and Siemens Ltd. Vs. State of Maharashtra reported in 2007 (207) E.L.T. 168 (SC) as done in Abhishek Mudhra (supra) and refused to entertain the challenge to a show cause notice. 24. In Additional Director General and another Vs. M.Rathakrishnan and another in W.A.Nos.702 and 703 of 2016 dated 18.04.2017, the Hon'ble Division Bench of this Court after noting several decisions of the Hon'ble Supreme Court, rejected the challenge made by the respondents/writ petitioners to the show cause notice and held that, writ is not maintainable against the show cause notice. 25. Bearing the above legal principle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspension. The authority has recorded certain reasons of which one of the reasons being, the offence was detected on 02.09.2013 and the licence was suspended on 25.06.2014, which is almost nine months after detection of the offence and the show cause notice has already been issued under Regulation 20(1) and inquiry proceedings have been initiated by appointing an Inquiry Officer to inquire the professional mis-conduct of the petitioner and accordingly, the order of suspension was revoked. Therefore, whether the petitioner had fulfilled his obligations under the Regulation will be tested while show cause notice dated 31.10.2014 is being adjudicated. Thus, as on date, the allegations against the petitioner remain as allegations and as not culminated in a conclusive findings. In such circumstances, the respondent ought to have renewed the petitioner's licence subject to the outcome of the show cause notice dated 31.10.2014. Therefore, I am unable to agree with the conclusion recorded by the respondent while rejecting the application for renewal stating that the conduct of the custom Broker is not found to be satisfactory, with reference to the obligations mentioned in the CBLR. T ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
