Civil Writ Jurisdiction Case No. 19535 of 2014 with CWJC No. 5540 of 2015. Case: Bhaskar Logistic Services Pvt. Ltd. Vs Union of India. Patna High Court

Case Number:Civil Writ Jurisdiction Case No. 19535 of 2014 with CWJC No. 5540 of 2015
Party Name:Bhaskar Logistic Services Pvt. Ltd. Vs Union of India
Counsel:For Appellant: Shri D.V. Pathy, Advocate and For Respondents: Shri Sanjay Kumar, ASG and Ms. Nivedita Nirvikar, CGC
Judges:I.A. Ansari, ACJ and Chakradhari Sharan Singh, J.
Issue:Constitution of India - Article 226
Citation:2016 (340) ELT 17 (Pat.)
Judgement Date:June 23, 2016
Court:Patna High Court
 
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Judgment:

Chakradhari Sharan Singh, J. (CAV)

  1. These two writ applications, under Article 226 of the Constitution of India, have been filed on behalf of the same petitioner and arise out of the action taken, under the provisions of Customs House Agent Licensing Regulations, 2004 (CHALR)/Customs Broker Licensing Regulations, 2013 (CBLR), against the petitioner, which is said to be a registered company, engaged in the business of Customs House Agent (hereinafter referred to as "C.H.A.").

  2. The petitioner held licence of C.H.A. in accordance with the said CHALR, framed under sub-section (2) of Section 146 of the Customs Act, 1962.

  3. By Adjudication Order No. 1(7) and C.H.A. Order No. 01/2013, dated 4-4-2013, invoking provisions of Regulation 20 and 22 of the CHALR, the petitioner''s license was suspended by the Commissioner, Customs (Headquarters), Patna. The petitioner has challenged the said order of suspension by filing CWJC No. 19535 of 2014. The Customs House Agent Licensing Regulations, 2004 (CHALR), came to be superseded with issuance of notification, dated 21-6-2013, and framing of "Customs Broker Licensing Regulations, 2013" (CBLR). The said CBLR, however, have saved all things done or omitted to have done before such supersessions.

  4. During the pendency of the said writ application, a show cause notice was served on the petitioner through letter, dated 5-3-2015, issued under the signature of the Commissioner of Customs (P), Patna, which contains imputation of misconduct in respect of which an enquiry was proposed to be conducted. Along with the said show cause notice, the grounds of imputation, articles of charges and list of documents, by which the articles of charges were proposed to be sustained, were annexed. The petitioner was asked to submit his written statement of defence within 30 days from the date of receipt of the said show cause notice. The petitioner, by way of filing CWJC No. 5540 of 2015, challenged issuance of the show cause notice. From the records, it transpires that an Enquiry Officer was appointed to enquire into the allegations of misconduct made against the petitioner. The enquiry was held in accordance with the provisions of Customs Broker Licensing Regulations, 2013, which superseded the previous Customs House Agent Licensing Regulations, 2004. The petitioner was charged of having acted in breach of Regulation 11(e) and 11(o) of the Regulations. The Enquiry Officer found the charges against the petitioner to have been proved and, accordingly, submitted his report on 9-6-2015. The petitioner was, thereafter, given an opportunity of personal hearing. Finally, by an order, dated 4-9-2015, the Commissioner of Customs (P), Patna, vide his Adjudication No. 01-VII(13)05-CHA/T/07/Part, revoked the License No. 1/CHA/2008, issued in favour of the petitioner. By filing an interlocutory application, being I.A. No. 7616 of 2015, the petitioner sought amendment in CWJC No. 5540 of 2015, for seeking quashing of the said adjudication order, dated 4-9-2015, which has been allowed.

  5. These are the circumstances in which both the writ applications have been heard together and are being disposed of by the present common judgment.

  6. We have Heard Mr. D.V. Pathy, learned Counsel for the petitioner, Mr. Sanjay Kumar, Assistant Solicitor General and Ms. Nivedita Nirvikar, learned Central Government Counsel, appearing on behalf of the respondents.

  7. For all practical purposes, CWJC No. 19535 of 2014 has lost its significance and has become infructuous in view of the subsequent developments, whereby the petitioner''s license itself has been cancelled and which is under challenge in CWJC No. 5540 of 2015.

  8. A preliminary objection has been raised at the very outset by Ms. Nivedita Nirvikar, learned Central Government Counsel, appearing on behalf of the respondents, over maintainability of the present writ application (CWJC No. 5540 of 2015) on the ground of existence of statutory and equally efficacious remedy under Regulation 21 of the CBLR, which reads thus:-

    "21. Appeal by Customs Broker.- A Customs Broker, who is aggrieved by any order passed by the Commissioner of Customs under these regulations, may prefer an appeal under section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of section 129 of the Act."

  9. Ms. Nirvikar has submitted that there is no exceptional circumstance for this Court to entertain this writ application, despite there being statutory remedy available to the petitioner. She has, accordingly, submitted that this writ application deserves to be dismissed at the very threshold. She has placed reliance, in this regard, on a Supreme Court''s decision, in the case of Star Paper Mills Limited v. State of U.P. and Others, reported in 2006 (10) SCC 201.

  10. Mr. D.V. Pathy, learned Counsel appearing on behalf of the petitioner, responding to the preliminary objection, has submitted that the rule of non-maintainability of writ petition, under Article 226 of the Constitution of India, is a rule of discretion and not of compulsion. He has submitted that in similar circumstance, other Courts have interfered with the action of the adjudicating authorities. Special reference has been made in this regard to the Supreme Court''s decision, in the case of Hotel Ashoka v. Assistant Commissioner of Commercial Taxes, reported in 2012 (276) E.L.T. 433 (S.C.) and a Division Bench decision of the Kerala High Court, in the case of Proprietor, Carmel Exports and Imports v. Commissioner of Customs, Cochin, reported in 2012 (276) E.L.T. 505 (Ker.).

  11. Before we take note of the aforesaid submissions, we consider it appropriate to briefly narrate the facts of the case, which has given rise to the filing of these writ applications.

  12. During course of an investigation, relating to a consignment of mobile accessories by one M/s. Regent Enterprise, it was noticed that there was another live consignment also covered under Bill of Entry (B/E) No. 762971, dated 15-3-2011, and Bill of Lading No. TAOCB1100032301 of laminate sheets having dimensions 1220 x 2440 x 0.7 MM and 1220 x 2440 x 0.9 MM, total admeasuring 15.83 CBM, imported in the name of the said importer, which was awaiting clearance. The declared assessable value of the said consignment was Rs. 3,36,757.59/- and the duty assessed on that value was Rs. 90,415/-, which was paid through challan. M/s. Regent Enterprises was having IEC (Importer-Exporter Code) No. 0309006198 and address at 9, Navratna Building, P.D. Mello Road, Carnac Bunder, Mumbai - 400009. The said Bill of Entry was filed by the petitioner, as CHA.

  13. During examination, the IEC Holder, Izahar Hussain, and CHA representive, Sheikh Khursheed were also present...

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