TMI Blog2018 (4) TMI 685X X X X Extracts X X X X X X X X Extracts X X X X ..... , from the date of receipt of a copy of the order impugned herein and upon compliance of the directions contained in paragraph 15, of the show cause notice, the respondent shall adjudicate the show cause notice and pass final orders as expeditiously as possible, preferably within a period of two months from the date on which, the case is ready for adjudication. Writ Court has also made it clear that show cause notice issued under Regulation 20, shall be adjudicated by the respondent without being in any manner influenced by the observations made in the order of the Writ Court - there is no infirmity or illegality, in the impugned order, passed by the Writ Court, as Courts have time and again, held that where hierarchy of appeals, is provided by the Statute, the party must exhaust the statutory remedies, before resorting to writ jurisdiction. The parties are directed to strictly adhere to the time line, framed in the impugned order. Appeal dismissed - decided against appellant. - W.A.No.38 of 2018 C.M.P.No.287 of 2018 - - - Dated:- 9-1-2018 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For Appellant : Mr.Hari Radhakrishnan For Respondent : Mr.T.Pramod Kumar Chopda ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant approached this Court by way of a writ petition for provisional release of the goods and the goods were released pursuant to the directions issued in the said writ petition. (vi) Subsequently, the respondent exercising his power conferred under Regulation 19(1) of the Customs Brokers Licensing Regulations, 2013, suspended Customs Broker Licence No.R-606/CBS of the appellant, with immediate effect, as an enquiry against the appellant is contemplated. (vii) Further, as per Regulation 19(2) of Customs Brokers Licensing Regulations, 2013, an opportunity of personal hearing was granted to the appellant on 28.09.2017. The director of the appellant company along with his counsel appeared for the post decisional hearing and made their submissions. (viii) After considering the submissions and written reply dated 27.09.2017, submitted during the personal hearing held on 28.09.2017, the respondent passed the order impugned in the writ petition, dated 12.10.2017, continuing the suspension of the appellant's licence with the direction that proceedings under Regulation 20 of the Customs Brokers Licensing Regulations, 2013, will follow. The said order, passed by the respondent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rials, which were given by the client and there is no bar for claiming different classification, as each bill of entry is an independent transaction. (v) That res judicata does not apply in matters pertaining to tax for different assessment years, because res judicata applies to debar Courts from entertaining issues on the same cause of action, whereas, the cause of cause for each year is distinct. (vi) That the power under Regulation 19(1) is invokable, where immediate action is necessary to suspend a licence of customs broker. However, in the instant case, licence was suspended after nearly three months after the seizure of goods and such suspension is not warranted. (vii) That show cause notice under Regulation 20, dated 03.11.2017, has been issued and the appellant is in the process of submitting their reply and the case may be directed to be adjudicated and pending disposal of the proceedings, the order of suspension may be revoked, so as to enable the appellant to carry on the business operation, which has virtually come to a stand still. 5. The respondent, justifying the order of suspension, inter alia, stated as follows: (i) The appellant, having already rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of entry by adding the word 'computer' with a view to avail the unintended benefit of the notification and this has resulted in passing the order continuing the suspension. On the above submissions, the learned counsel prayed for sustaining the order continuing suspension. 6. After hearing the learned counsel for the parties, the Writ Court, vide order, dated 08.12.2017, at Paragraphs 8 to 13, held as follows: 8. In Commissioner of Customs vs. K.M.Ganatra Company reported in (2016) 4 SCC 687, the Hon'ble Supreme Court quoted the observation of CEGAT, West Zonal Bench, Mumbai, with regard to the role of a Customs House Agent like the petitioner. It was pointed out that the Customs House Agent (CHA) occupies the very important position in the customs house. The customs procedures are complicated. The importers have to deal with a multiplicity of agencies namely carriers, custodians like BPT as well as the Customs. The importer would find it impossible to clear his goods through its agencies without wasting valuable energy and time. The CHA is supposed to safeguard the interests of both the importers and the customs. A lot of trust is kept in CHA by the importers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which is clear from reading of regulation 18. It is submitted that the grounds mentioned in clauses (a) to (f) in Regulation 18 are the grounds for revocation of licence or imposing of penalty. It is a submission that if a Customs Broker has committed violations contemplated under clauses (c) to (f), it would undoubtedly result in an order of revocation whereas, if Customs Broker contravenes clauses (a) (b) of Regulation 18, it would be a case for imposition of penalty, which cannot be more than Rupees Fifty Thousand and therefore, the petitioner's licence could not have been placed under suspension. The submission made on behalf of the petitioner cannot be countenanced, as Regulation 18 provides for the grounds of revocation of licence or imposition of penalty. It may be incorrect to read something which is not contained in the Regulation and to state that the violations of clauses (a) (b) can invite only a penalty and violations of clauses (c) to (f) will definitely result in revocation. The manner in which Regulation is interpreted is incorrect, as it is the adjudicating authority, who has to take a decision in the matter as to what is the nature of punishment to be impo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... permitted time. It appears that subsequently, the petitioner has been handling the very same consignments and effecting clearances for the very same importer through the Mumbai Port. After lapse of about two years, the present bill of entry has been filed. The petitioner does not plead ignorance or lack of knowledge of the order-in-original, dated 18.01.2012, confirmed in order-in-appeal, dated 30.07.2014, in respect of an identical consignment. In such circumstances, it has to be seen as to what is the duty cast upon a Customs Broker, as it has been held that he is supposed to safeguard the interest of both the importers and the Customs. 11. Regulation 11 lists out the obligations of a Customs Broker and one such obligation is to advice the client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or the Assistant Commissioner of Customs. Further, he is required to exercise due diligence to ascertain the correctness of any information, which he imparts to a client with reference to any work related to clearance of cargo or backage. Thus, there was a duty on the part of the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rview of a case for immediate suspension. Thus, considering the conduct of the petitioner and the facts, the first respondent has exercised his powers and found the petitioner's case to be an appropriate case for immediate suspension. After the petitioner was afforded an opportunity, he was given a hearing and the order of suspension has been directed to be continued and the reasons assigned in the impugned order are just and germane to the allegations made against the petitioner. However, the impugned proceedings is only an order of suspension and procedure under Regulation 20, is to follow for which already show cause notice has been issued. 13. Thus, for all the above reasons, the petitioner has not made out any case for interference with the impugned order. Accordingly, the Writ Petition fails and it is dismissed. The petitioner is directed to submit their reply to the show cause notice, dated 03.11.2017, within a period of 30 days from the date of receipt of a copy of this order and upon compliance of the directions contained in paragraph 15 of the show cause notice, the respondent shall adjudicate the show cause notice and pass final orders as expeditiously as possi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , till such time. (iv) After suspension of licence, the respondent is bound to follow the procedure set out under Regulation 20 of Customs Brokers Licensing Regulations, 2013. The said procedure mandates issuance of a show cause notice, appointment of inquiry officer, submission of report by the inquuiry officer and final decision by Commissioner. After detailed inquiry, the licensing authority may either revoke the licence or revoke the suspension of the licence or impose penalty, which cannot exceed ₹ 50,000/-. Only in cases which justify revocation of licence can initial suspension of licence be justified. In cases where only a penalty is warranted, the initial suspension of licence will cause irreparable injury to the licencee. (v) The only ground stated by the respondent for continuing the order of suspension is that the appellant had wrongly classified the goods in question despite the existence of order-in-appeal No.1323 of 2014, dated 30.07.2014, passed against the importer M/s.BenQ India Pvt. Ltd, by the Commissioner of Customs (Appeals), Chennai. The appellant has clearly stated before the respondent, during post-decisional hearing, that they were not aware ab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ors in question are all computer monitors. It is needless to say that commercial understanding has a role in the matter of classification of goods. The Hon'ble Supreme Court's observation in the matter of classification of V.P.Latex Dunlop India Ltd 1983 (13) ELT 1566 (SC) is relevant the importer said it was 'rubber' but the Government said it was 'synthetic resin'. (xiii) That the power of suspension under Regulation 19 is an exception limited to appropriate cases where immediate action is necessary and is not justified in the present case. (xiv) That para 14 of the order issued under Regulation 19(1) would neither justify immediacy of suspension nor grounds for suspension. The question as to whether the classification of the goods adopted by an importer involves loss of revenue or that the act of the petitioner is detrimental to the interest of Revenue is a matter to be decided only after adjudication of the notice issued under Section 28 of the Customs Act, 1962 and prayed for revocation of the suspension of licence. 9. Mr.T.Promod Kumar Chopda, learned counsel appearing for the respondent, made submissions to sustain the impugned order of the W ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng to an alternative remedy has nothing to do with the jurisdiction of the case, normally the High Court should not interfere if there is an adequate efficacious alternative remedy. If somebody approaches the High Court without availing the alternative remedy provided, the high Court should ensure that he has made out a strong case or that there exist good grounds to invoke the extraordinary jurisdiction. 11.4. In United Bank of India Vs. Satyawati Tondon and Others {(2010) 8 SCC 110}, the Hon'ble Apex Court, at paragraph Nos.43 to 45, held as follows:- 43. Unfortunately, the High Court overlooked the settled law that the High Court will ordinarily not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person and that this rule applies with greater rigour in matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. In our view, while dealing with the petitions involving challenge to the action taken for recovery of the public dues, etc., the High Court must keep in mind that the legislations enacted by Parliament and State Legislature ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been taken itself contains a mechanism for redressal or grievance still holds the field. 11.6. The Hon'ble Apex Court, after considering a catena of cases, in Shauntlabai Derkar and Another Vs. Maroti Dewaji Wadaskar {(2014) 1 Supreme Court Cases 602}, at para Nos.15 to 18, held as follows:- 15. Thus, while it can be said that this Court has recognised some exceptions to the rule of alternative remedy i.e, where the statutory authority has not acted in accordance with the provisions of the enactment in question, or in defiance of the fundamental principles of judicial procedure, or has resorted to invoke the provisions which are repealed, or when an order has been passed in total violation of the principles of natural justice, the proposition laid down in Thansingh Nathmal Case {Thansigh Nathmal Vs. Supt. of Taxes, AIR 1964 SC 1419}, Titaghur Paper Mills Case {Titaghur Paper Mills Co. Ltd Vs. State of Orissa (1983) 2 SCC 433} and other similar judgments that the High Court will not entertain a petition under Article 226 of the Constitution if an effective alternative remedy is available to the aggrieved person or the statute under which the action complained of has be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the period of limitation. However, it is clarified that the appellate authority shall not be influenced by any observation made by the High Court while disposing of Writ Petition (Civil) No.44 of 2009, in its judgment and order dated 5/10/2010. 11.7. After considering a plethora of judgments, in Union of India and Others Vs.Major General Shri Kant Sharma and Another {(2015) 6 SCC 773}, at para 36, the Hon'ble Apex Court held as follows:- The aforesaid decisions rendered by this Court can be summarised as follows:- (i) The power of judicial review vested in the High Court under Article 226 is one of the basic essential features of the Constitution and any legislation including the Armed Forces Tribunal Act, 2007 cannot override or curtail jurisdiction of the High Court under Article 226 of the Constitution of India (Refer: L.Chandrakumar Vs. Union of India (1997) 3 SCC 261 and S.N.Mukherjee Vs. Union of India (1990) 4 SCC 594. (ii) The jurisdiction of the High Court under Article 226 and this Court under Article 32 though cannot be circumscribed by the provisions of any enactment, they will certainly have due regard to the legislative intent evidenced by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A Customs Broker shall - (a) ..... (b) ..... (c) ..... (d) advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (e) exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage; ........ xxx 18. Revocation of licence or imposition of penalty.- The Commissioner of Customs may, subject to the provisions of regulation 20, revoke the licence of a Customs Broker and order for forfeiture of part or whole of security, or impose penalty not exceeding fifty thousand rupees on a Customs Broker on any of the following grounds, namely : (a) failure of to comply with any of the conditions of the bond executed by him under regulation 8; (b) failure to comply with any of the provisions of these regulations, within his jurisdiction or anywhere else; (c) committing any misconduct, whether within his jurisdiction or anywhere else which in the opinion of the Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the case may be, to inquire into the grounds which are not admitted by the Customs Broker. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs Broker, for the purpose of ascertaining the correct position. (4) The Customs Broker shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall prepare a report of the inquiry and after recording his findings thereon submit the report within a period of ninety days from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within a period of two months from the date on which, the case is ready for adjudication. Writ Court has also made it clear that show cause notice issued under Regulation 20, shall be adjudicated by the respondent without being in any manner influenced by the observations made in the order of the Writ Court. 15. We do not find any infirmity or illegality, in the impugned order, passed by the Writ Court, as Courts have time and again, held that where hierarchy of appeals, is provided by the Statute, the party must exhaust the statutory remedies, before resorting to writ jurisdiction. Therefore, we are in agreement, with the decision of the Writ Court, in directing the appellant herein, to work out their remedy as contemplated under Customs Brokers Licensing Regulations, 2013. We further direct the parties to strictly adhere to the time line, framed in the impugned order. We would also like to make it clear that the Appropriate Authority, shall not, in any manner, be influenced, by the observations made by Writ Court, while adjudicating the show cause notice issued under Regulation 20 of Customs Brokers Licensing Regulations,2013. 16. With the above observations, the Writ Appea ..... X X X X Extracts X X X X X X X X Extracts X X X X
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