TMI Blog2021 (6) TMI 802X X X X Extracts X X X X X X X X Extracts X X X X ..... t / License Issuing Authority, this Court is of an opinion that the period of limitation for initiation of action under the regulation is to be reckoned from 01.07.2016, the date on which the offence report had been received by the License Issuing Authority / the Commissioner of Customs, Chennai. This being the factum, the impugned interim suspension order was issued on 08.08.2016 and the impugned show cause notice was issued on 28.09.2016. These proceedings were instituted within a period of 90 days. Thus, the orders cannot be said to be violative by the time limit prescribed under the Regulations. This Court is of the considered opinion that normally a writ against a show cause notice is not entertainable. As far as the interim order of suspension is concerned, the writ petitioner is continuing its operation for about 4 years and therefore, the interim order of suspension lost its relevance. Thus, the interim order of suspension need not be restored and the respondents are permitted to continue the proceedings based on the show cause notice issued on 28.09.2016 and take a decision and pass final orders. As the respondents could able to establish factually that the offence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orts mentioned above are not disputed by the respondents. Thus, those facts narrated deserves no further consideration and the issue raised in these writ petitions are that the issuance of order of interim suspension and the Show Cause Notice is well within the provisions of the Customs Broker Licensing Regulations or not. 4. The learned counsel for the petitioner made a submission that the initiation of action against the petitioner is beyond the time limit prescribed under the Regulation and therefore, the interim suspension as well as the Show Cause Notice issued after a lapse of 90 days is unsustainable and liable to be set aside. To substantiate the same, the learned counsel for the petitioner contended that the offence report was of the year 2015 and the Show Cause Notice was issued on 16.09.2015 and therefore, the interim order of suspension as well as the impugned Show Cause Notice issued in the year 2016 after a lapse of the prescribed time limit cannot be sustained at all. 5. The learned counsel for the petitioner relied on the judgment in the case of A.M.Ahamed Co., Vs. Commissioner, reported in 2014 (309) E.L.T.433 (Mad) . In the said judgment, it is held tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a Court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do 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 but not pursued that the party could prosecute proceedings under Article 226 for the same relief. This Court has also held that that when a party has already moved the High Court under Article 226 and failed to obtain relief and then moved an appli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stated that, because of the other issues that is the merit of the case, this mandatory requirement of the limitation can be ignored. 43. It is not the case of the 1st respondent that the 90 days limitation contemplated under Regulation 22(1), is directory. It is also not the case of the 1st respondent that the show cause notice was issued within the limitation period of 90 days from the date of offence report. 44. Since the offence report was dated 22.09.2010 and the show cause notice, admittedly, was issued only on 18.11.2011, there can be no doubt that the said show cause notice was issued well beyond the period of limitation of 90 days. 45. Whatever be the claim and counter claim on the merits, in this appeal can, in our view, they get shadowed by the failure on the part of the revenue in not acting in time, by issuing the show cause notice, within the period as contemplated under Regulation 22 (1) of CHALR, 2004. 46. Therefore, we are of the considered view, and in fact have no hesitation to hold so that, the Revenue has not issued and the show cause notice dated 18.11.2011 within the period of limitation prescribed under Regulation 22 (1) CHALR, 2004 and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s issued by the Superintendent of Customs, Customs House, New Harbour Estate, Tuticorin, in proceedings dated 28.04.2015. The said Summon was issued under Section 108 of the Customs Act, 1962. It is contended that the petitioner is operating in various Ports, but the License Issuing Authority is the Commissioner of Customs, Chennai. Therefore, the Licensing Authority is competent to issue an order of interim suspension, show cause notice and proceed with the enquiry by following the regulations. In the present case, the initial summon was issued by the Superintendent of Customs at Tuticorin and the said proceedings were not communicated to the License Issuing Authority as it is not necessary to do so. In view of the fact that the offence was committed in Tuticorin Port, the competent authority of the Tuticorin Port initiated actions and issued summons. The authority at Tuticorin issued Show Cause Notice in proceedings dated 16.09.2015, setting out allegations against the petitioner. Reliance is placed on the documents for issuance of show cause notice. It is categorically stated, why penalty should be imposed on the petitioners under Section 114(i) read with Section 117 of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the License Issuing Authority at Chennai, they are empowered to institute action under the provisions of the Customs Brokers Licensing Regulations. 16. In the present case, admittedly, the interim order of suspension was issued on 08.08.2016 under Regulation 19. Immediately, the petitioner approached the Hon'ble High Court by filing W.P.No.29141 of 2016 and an interim order was granted and pursuant to the interim order, he is continuing the operations. During the pendency of the said writ petition, the competent authority issued show cause notice in proceedings dated 28.09.2016 and challenging the said show cause notice, subsequent writ petition was filed in W.P.No.38198 of 2016. 17. Carefully considering the relevant dates and the receipt of offence report by the first respondent / License Issuing Authority, this Court is of an opinion that the period of limitation for initiation of action under the regulation is to be reckoned from 01.07.2016, the date on which the offence report had been received by the License Issuing Authority / the Commissioner of Customs, Chennai. This being the factum, the impugned interim suspension order was issued on 08.08.2016 and the impugne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by the competent authorities at Tuticorin Port, which was communicated through intimation letter to the License Issuing Authority is to be construed as an offence report for the purpose of initiation of action under the Regulations. It is needless to state that unless an offence report is served to the License Issuing Authority, it may not be possible for initiation of further action. As rightly pointed out by the learned Senior Panel counsel that the License Issuing Authority may not have knowledge about each and every actions initiated by the competent authorities of various Ports. The petitioner is having operations in number of Ports across the country. Therefore, the communication of offence report by the authorities of a particular Port to the License Issuing Authority is an important factor for the purpose of deciding the limitation for initiation of action under the Regulations. Thus, the principles laid down in the case of A.M.Ahamed Co., Vs. Commissioner (cited supra) is crystal clear that the receipt of offence report by the License Issuing Authority would be relevant for the purpose of initiation of action against the Customs Brokers License by invoking the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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