R141 IN THE HIGH COURT OF KARNATAKA AT BENGALURU Dated this the 6th day of February, 2018 Before THE HON’BLE DR JUSTICE VINEET KOTHARI Writ Petition No.15866 of 2016 (T-TAR) Between: M/s. Cargomar No.36-37, AVP Plaza Peddanna Reddy Layout Horamavu, Bengaluru-560 043 (Authorised Representative Shri. Satheesh Kumar R Branch Manager Aged about 43 years) ... Petitioner (By Mr. B.G. Chidananda Urs, Advocate) And:
1. Union of India Ministry of Finance Represented by its Secretary North Block, New Delhi-110 001.
2. The Principal Commissioner of Customs Office of the Commissioner of Customs City Commissionerate, Central Revenue Buildings P.B. No.5400, Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 2/41 Queens Road, Bengaluru-560 001. ... Respondents (By Mr. Jeevan J.
Neeralgi, Advocate) **** This Writ Petition is filed under Articles 226 and 227 of the Constitution of India, praying to issue a writ of certiorari, or any other appropriate writ, order or direction quashing the order of the second Respondent in C.No.VIII/13/4(76)/84 City Cus. Tech dated 16-03- 2016 vide Annexure “B” & etc., This Writ Petition coming on for Preliminary Hearing in ‘B’ Group this day, the Court made the following:
ORDERMr. B.G. Chidananda Urs, Adv. for Petitioner - assessee Mr. Jeevan J.
Neeralgi, Adv. for Respondents.
1. The petitioner – M/s. Cargomar, a Customs Broker governed by the provisions of the Customs Act, 1962 (hereinafter called ‘Act’ for short) and Customs Brokers Licensing Regulations, 2013 (‘Regulations of 2013’ for short) has filed this writ petition in this Court on 21/03/2016 aggrieved by the order passed by the Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 3/41 Respondent – Principal Commissioner of Customs on 16/03/2016 under Regulation 23 of the aforesaid ‘Regulations of 2013’, prohibiting the petitioner M/s. Cargomar from operating within the jurisdiction of Bangalore Customs Division, with immediate effect and until further orders.
2. The learned counsel for the petitioner, Mr. B.G. Chidananda Urs has submitted before the Court that the said order of prohibition passed under the non obstante provision of Regulation 23 of the ‘Regulations of 2013’ deserves to be quashed by this Court as the same has been passed without giving any prior opportunity of hearing to the petitioner and it has virtually deprived the petitioner assessee of its source of livelihood by prohibiting it from operating in the jurisdiction of Respondent Commissioner of Customs, Bangalore Division. Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 4/41 3. He has submitted that the allegation of mis- declaration against the petitioner assessee on behalf of the importer, M/s.J.P. Traders, as made in the impugned order that the petitioner deliberately misclassified the goods under CTH2520290 attracting the rate of duty at 5% as against the appropriate classification under CTH6809000 attracting duty at the rate of 10% cannot be said to be a mis-declaration on the part of the petitioner, the Customs Broker and such declaration is made by the importer and therefore no offence was committed by the present petitioner to attract the consequence of “prohibition” under Regulation 23 and the impugned order, therefore, deserves to be quashed.
4. He has further submitted that Section 122-A of the Act contained in Chapter XIV dealing with the “Confiscation of Goods and Conveyances and Imposition of Penalties”, comprising of Sections 111 Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 5/41 to 127 of the Customs Act, 1962 provides for adjudication procedure and inter alia Section 122-A provides that the Adjudicating Authority shall, in any proceedings under this Chapter or any other provisions of this Act, give an opportunity of being heard to a party in a proceedings, if the party so desires. Therefore in the absence of any prior notice and opportunity of hearing, the impugned order under Regulation 23 deserves to be quashed being in breach with the principles of natural justice.
5. On the question of maintainability of the present writ petition, on account of availability of an alternative remedy by way of an appeal against the impugned order, Annexure B dated 16/03/2016 under Regulation 23 of ‘Regulations of 2013’, the learned counsel for the petitioner has urged before the Court that the relevant provisions of Section 129-A of the Act which provides for Appeals to the Appellate Tribunal, only a decision or order passed by the Principal Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 6/41 Commissioner of Customs or Commissioner of Customs as an ‘Adjudicating Authority’ is appealable and since presently the impugned order of prohibition under Regulation 23 is not an Adjudication Order or an order passed by the Adjudicating Authority, therefore, he submitted that the remedy by way of an Appeal under Section 129-A of the Act against the said order is not available to the petitioner.
6. Mr. Urs has further submitted before the Court that the ‘Regulations of 2013’ have been enacted under the powers conferred on the Central Government under Section 146 of the Act. Section 146 of the Act provides for Licence for Customs Brokers and Section 146(1) of the Act provides that “no person shall carry on the business as a Customs Broker relating to the entry or departure of a conveyance or the import or export of goods at any customs station unless such person holds a licence granted in this behalf in accordance with the Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 7/41 Regulations” and Section 146 (2) empowers the Board of Customs to make Regulations with regard to Customs Brokers.
7. The learned counsel urged that Clause (g) of Section 146(2) of the Act empowers the Board to enact Regulations vide Clause (g) “the appeals, if any, against an order of suspension or revocation of a licence and the period within which such appeal may be filed”. He therefore submitted that the appeals provided under the Regulations of 2013 for which a separate Regulation No.21 has been enacted, could provide only for the appeals to the next higher Appellate Authority, namely, the Tribunal in the present case, since the impugned order has been passed by the Commissioner only if the impugned order was for suspension or cancellation of the license as provided under Regulations 18 and 19 of ‘Regulations of 2013’. Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 8/41 8. He has further drawn the attention of the Court towards Regulation 20 which provides for the procedure to be followed by the Commissioner of Customs for revoking licence or for imposing a penalty and which inter alia envisages issuance of a notice in writing to the Customs Broker within a period of 90 days from the date of receipt of the Offence Report.
9. He has relied upon the judgment of the Division Bench of Delhi High Court in the case of Overseas Air Cargo Services Vs. Commissioner of Customs (General), New Delhi 2016 (340) E.L.T. 119 (Del.) to the effect that the said period of 90 days under Regulation 20 is of mandatory nature and not directory.
10. The learned counsel for the petitioner therefore, submitted that the impugned order deserves to be quashed by this Court in the present writ petition. Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 9/41 11. Per contra, Mr. Jeevan J.
Neeralgi, learned counsel appearing for the Respondent - Customs Department has submitted before the Court that as far as the question of alternative remedy by way of an appeal against the impugned order passed under Regulation 23 is concerned, this Court has already taken a view in the case of M/s. Capricorn Logistics Pvt. Ltd. Vs. Commissioner of Customs (W.P.No.52739/2017 disposed of on 21/11/2017) holding that the remedy by way of an appeal before CESTAT under Section 129 of the Act is available against the order passed under Regulation 23 of the Act as per Regulation 21 of the ‘Regulations of 2013’.
12. Mr. Jeevan J.
Neeralgi has further submitted that Section 2(1) of the Act defines the term “adjudicating authority” to mean any authority competent to pass any order or decision under this Act but, does not include the Board, Commissioner Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 10/41 (Appeals) or Appellate Tribunal. He therefore, submitted that the order passed by the Principal Commissioner of Customs under Regulation 23 of ‘Regulations of 2013’ is an order passed by the ‘adjudicating authority’ as defined under Section 2(1) of the Act and since any decision or order passed by the Principal Commissioner of Customs as an ‘adjudicating authority’ is appealable under Section 129-A of the Act before the Appellate Tribunal, therefore, the present impugned order under Regulation 23 would also be appealable before the Tribunal under Section 129-A of the Act.
13. He has further submitted that even Regulation 21 of ‘Regulations of 2013’ does not restrict the maintainability of an appeal under Section 129-A of the Act only in cases of suspension or revocation of licence of the Customs Brokers and Regulation 21 provides for a Customs Broker who is aggrieved by any order passed by the Commissioner of Customs under Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 11/41 these Regulations (including the Regulation
23) to prefer an appeal under Section 129-A of the Act. Therefore, Mr. Neeralgi submitted that in view of availability of an alternative remedy by way of an appeal to the Tribunal, the present writ petition is not maintainable and the petitioner assessee deserves to be relegated back to the appellate Forum under Section 129-A of the Act.
14. I have heard the learned counsels on both sides.
15. Before dilating upon the rival submissions made before this Court in the present case, it is considered appropriate to quote the relevant provisions of the Act and the Regulations of 2013 as discussed above. “ 2. Definitions: In this Act, unless the context otherwise requires – Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 12/41 [(1) “adjudicating authority” means any authority competent to pass any order or decision under this Act, but does not include the Board, Commissioner (Appeals) or Appellate Tribunal; 122-A. Adjudication Procedure: (1) The adjudicating authority shall, in any proceeding under this Chapter or any other provision of this Act, give an opportunity of being heard to a party in a proceeding, if the party so desires. (2) The adjudicating authority may, if sufficient cause is shown at any stage of proceeding referred to in sub-section (1), grant time, from time to time, to the parties or any of them and adjourn the hearing for reasons to be recorded in writing: PROVIDED that no such adjournment shall be granted more than three times to a party during the proceeding. 129-A. Appeals to the Appellate Tribunal: Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 13/41 (1) Any person aggrieved by any of the following orders may appeal to the Appellate Tribunal against such order- (a) a decision or order passed by the [Principal Commissioner of Customs or Commissioner of Customs]. as an adjudicating authority. (b) an order passed by the [Commissioner (Appeals)]. under section 128A; (c) an order passed by the Board or the [Appellate Commissioner of Customs]. under section 128, as it stood immediately before the appointed day; (d) an order passed by the Board or the [Principal Commissioner of Customs or Commissioner of Customs]., either before or after the appointed day under section 130, as it stood immediately before that day: Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 14/41 146. Licence for Customs Brokers: (1) No person shall carry on business as a customs broker relating to the entry or departure of a conveyance or the import or export of goods at any customs station unless such person holds a licence granted in this behalf in accordance with the regulations. (2) The Board may make regulations for the purpose of carrying out the provisions of this section and, in particular, such regulations may provide for – (a) the authority by which a licence may be granted under this section and the period of validity of such licence; (b) the form of the licence and the fees payable therefor; (c) the qualifications of persons who may apply for a licence and the qualifications of persons to be employed Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 15/41 by a licensee to assist him in his work as a customs broker; (d) the manner of conducting the examination; (e) the restrictions and conditions (including the furnishing of security by the licensee) subject to which a licence may be granted; (f) the circumstances in which a licence may be suspended or revoked; and (g) the appeals, if any, against an order of suspension or revocation of a licence and the period within which such appeal may be filed. CUSTOMS BROKERS LICENSING REGULATIONS, 2013 Regulation 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 Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 16/41 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 Commissioner renders him unfit to transact any business in the Customs Station; (d) adjudicated as an insolvent; (e) of unsound mind; and (f) has been convicted by a competent Court for an offence involving moral turpitude: Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 17/41 Provided that the imposition of penalty or any action taken under these regulations shall be without prejudice to the action that may be taken against the Customs Broker or his employee under the provisions of the Customs Act, 1962 (52 of 1962) or any other law for the time being in force. Regulation 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 Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 18/41 suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs Broker: Provided that in case the Commissioner of Customs passes an order for continuing the suspension, the further procedure thereafter shall be as provided in regulation 20. Regulation 20: Procedure for revoking licence or imposing penalty.-. (1) The Commissioner of Customs shall issue a notice in writing to the Customs Broker within a period of ninety days from the date of receipt of an offence report, stating the grounds on which it is proposed to revoke the licence or impose penalty requiring the said Customs Broker to submit within thirty days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs Broker desires to be heard in Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 19/41 person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. (2) The Commissioner of Customs may, on receipt of the written statement from the Customs Broker, or where no such statement has been received within the time- limit specified in the notice referred to in sub- regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as 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. Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 20/41 (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 the date of issue of a notice under sub-regulation (1). (6) The Commissioner of Customs shall furnish to the Customs Broker a copy of the report of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, and shall Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 21/41 require the Customs Broker to submit, within specified period not being less than thirty days, any representation that he may wish to make against the said report. (7) The Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs Broker, pass such orders as he deems fit either revoking the suspension of the license or revoking the licence of the Customs Broker or imposing penalty not exceeding the amount mentioned in regulation 22 within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-regulation (5): Provided that no order for revoking the license shall be passed unless an opportunity is given to the Customs Broker to be heard in person by the Commissioner of Customs. Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 22/41 Regulation 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.
22. Penalty. – A Customs Broker, who contravenes any provisions of these regulations or who fails to comply with any provision of these regulations shall be liable to a penalty which may extend to fifty thousand rupees.
23. Prohibition. – Notwithstanding anything contained in these regulations, the Commissioner of Customs may prohibit any Customs Broker from working in one or more sections of the Customs Station, if he is satisfied that such Customs Broker has not fulfilled his Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 23/41 obligations as laid down under regulation 11 in relation to work in that section or sections.” 16. This Court dealing with a similar impugned order under Regulation 23 in the case of M/s. Capricorn Logistics Pvt. Ltd. (supra) decided on 21/11/2017, had held that such orders under Regulation 23 of the ‘Regulations of 2013’ would be appealable before the Appellate Tribunal under Section 129-A of the Act and it is considered appropriate to quote the relevant portion of the said order dated 21/11/2017 in the case of M/s. Capricorn Logistics Pvt. Ltd. “5. The aforesaid Regulations of 2013 namely, Customs Brokers Licensing Regulations, 2013 vide Regulation No.21 provides for an alternative remedy by way of an appeal to such aggrieved Customs Broker under Section 129A of the Customs Act, 1962 before the Customs Excise and Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 24/41 Service Tax Appellate Tribunal (CESTAT) established under Section 129(1) of the Act.
6. To prevent evasion of customs duty and illegal duty draw backs, these Regulations have been framed for regulating the business of Customs Brokers under the provisions of Customs Act, 1962 and the stringent conditions stipulated in the said Regulations requires a rigorous exercise of verification of documents by the Exporters and Importers operating through the territorial jurisdiction of the Authorities of the Customs Department. Regulations 11 and 17 of the said CBLR, 2013, which are alleged to have been breached by the present Customs Broker have been quoted by the Respondent- Commissioner of Customs in the impugned order itself.
7. It is true that prima-facie, this order appears to have been passed without giving any prior notice and opportunity of hearing to the petitioner, but a perusal of different Regulations particularly, Regulation Nos.18, Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 25/41 19, 20, 22 and 23 indicates that various kinds of penalties and actions are envisaged under these Regulations to be taken against the erring Customs Broker.
8. Regulation 19 provides for Suspension of licence, while Regulation 20 provides the Procedure for revoking licence or imposing penalty. Regulation 22 provides for the Penalty for contravention of any provisions of these Regulations extending up to Rs.50,000/-. Regulation 23, which has been invoked in the present case is a non- obstante provision in the said Regulations, where by the competent authority namely, the Prl.Commissioner of Customs or Commissioner of Customs may prohibit any Customs Broker from working in any one or more sections of the Customs Station, if he is satisfied that such Customs Broker has not fulfilled his obligations under Regulations 11 or 17 in relation to work in that section or sections. Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 26/41 9. Thus, to secure the immediate result and prohibit any continuation of illegal activities, such authority has been vested with a power to take immediate action under Regulation 23 as aforesaid. The operative portion of the impugned order also shows that the said order is passed with immediate effect and until further orders. The said order is dated 13.11.2017.
10. The petitioner, in these circumstances, not only has an opportunity to show-cause and establish its innocence and compliance with the Regulations before the concerned authority itself even now, but has equal, adequate and efficacious remedy by way of appeal against the impugned order even before the CESTAT under Regulation 21, which is quoted below for ready reference:- “REGULATION21 Appeal by Customs Broker. – A Customs Broker, who is aggrieved by any order passed by the [Principal Commissioner Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 27/41 of Customs or Commissioner of Customs, as the case may be]. 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”.
11. As far as the ground raised before this Court of breach of principles of natural justice is concerned, this Court would like to observe that even the said ground can very well be raised before the appellate forums like CESTAT in the present case. The principles of natural justice as held by the Hon’ble Supreme Court also is not an unruly horse but should enure to the benefit of a citizen or a corporate entity or a person, who comes to the Court of law for protection of his fundamental and legal rights and comes to the Court with clean hands. If the challenged actions of the authorities of the Department which are meant to prevent tax evasions and leakage of revenue and even the crime in the Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 28/41 form of illegal duty drawback etc., like in the present case, were to be lightly interfered and tinkered with on the anvil of breach of principles of natural justice, the very basis and foundation for invoking these principles would be set at naught and the Courts in exercise of their extraordinary jurisdiction under Article 226 of the Constitution of India should desist from doing so.
12. A lenient and conveniently held out tool of ground of natural justice cannot be used to protect those who have indulged in gross violation of Regulations and Rules and which has resulted in evasion of tax and duties and has caused revenue loss. On the face of it, this ground invoked in the writ jurisdiction, may appear to be attractive to exercise the discretion under Article 226 of the Constitution of India but the malaise in such cases is indeed deep-rooted, where the Courts in its extraordinary jurisdiction, on the basis of the Affidavits only cannot even easily reach into. Such cases should essentially come to the Constitutional Courts after Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 29/41 being screened by the fact finding Departmental Authorities, which hierarchy of authorities is already set up to exercise the appellate and revisional jurisdiction under the relevant laws.
13. The protection, relief and quashing of the impugned orders in such cases on such vaguely worded grounds on a misplaced sympathy can cause more damage to the Society than even protecting the semblance of legal rights which the petitioners may have.
14. This Court would not like to comment upon the facts of the present case, as the matter appears to be still pending under investigation and the appellate order, the petitioner may have his own opportunity to lead his evidence in the matter at this stage, but prima-facie reading of the order, shocks the conscience of this Court. The manner in which the shell companies or the paper companies are created to ‘show’ the export of goods on these fake Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 30/41 documents, which leads up to the claim of the duty drawbacks, which empties the Treasury of the Government, by draining out the public money by the mischievous elements, does not require any sympathy of the Court. The immediate ban in such cases on the Customs Brokers, who are the real identified persons before the Customs Authorities and whose activities only leads to such tax evasion or false duty drawbacks in the name of such shell companies may be the real persons were doing all this in the name of such companies.
15. Therefore, the temporary ban of such persons or Customs Brokers for the time being subject to the further investigation and even the permanent ban, if the case against them is proved, does not call for any interference by the Constitutional Courts. Therefore, in such circumstances, the alleged ground of breach of principles of natural justice need not prompt this Court to immediately interfere in such cases at such premature stage of the matter. Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 31/41 16. The writ petition is therefore dismissed without interfering in the impugned order. No costs. Copy of this order be sent to the Respondent forthwith.” 17. In the considered opinion of this Court, the said view taken by this Court in the case of M/s. Capricorn Logistics Pvt. Ltd. (supra) does not require a reconsideration or a change, but on the other hand few more peripheral arguments now raised by the learned counsel for the petitioner deserve to be dealt to fortify and reiterate the aforesaid view.
18. The contention raised by the learned counsel for the petitioner that Regulation 21 provides for an appeal to the Customs Broker only in the limited contingency of suspension and cancellation of licence and not under any other contingencies based on the Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 32/41 reading of Section 146 (2)(g) of the Act is rather misconceived and does not deserve to be accepted. The power to frame Rules given to the Board in the various fields enumerated in Clauses (a) to (g) of sub-Section (2) of Section 146 of the Act are not restrictive in any manner, but they provide for different fields for which Regulations can provide for. Unless the Regulation 21 quoted above itself was couched in a narrow and limited terms to provide for an appeal only against the suspension and cancellation of licence, the State could have said so, but Regulation 21 on the other hand is couched in wider terms and it stipulates that a Customs Broker may prefer an appeal under Section 129-A of the Act if he is aggrieved by any order passed by the Commissioner of Customs.
19. The word “any order” in Section 129-A of the Act would undoubtedly cover an order passed under Regulation 23 as well, more over, Section 129-A of the Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 33/41 Act, the parent provision from which the right to appeal flows to the aggrieved person does not have any such restrictive terms incorporated in the said provision. It says that a decision or order passed by the Principal Commissioner of Customs as an ‘adjudicating authority’ shall be appealable. There is no doubt that the order passed under Regulation 23 by the Principal Commissioner of Customs is also an order passed by him as an ‘adjudicating authority’. What is adjudicated and what is imposed in the order under the Regulations does not de-limit the scope of the appellate provisions but it is important only for deciding the consequence flowing from such orders.
20. The contention of the learned counsel for the petitioner assessee that the ‘adjudication procedure’ provided in Section 122-A of the Act namely of giving an opportunity of hearing if the party so desires is also without any merit as the said provisions of Section 122- Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 34/41 A of the Act contained in Chapter XIV dealing with the ‘Confiscation of Goods and Imposition of Penalties’ does not deal with a contingency like “prohibition” under Regulation 23 quoted above. Therefore, the procedure provided in Section 122-A of the Act in Chapter XIV cannot be imported and read into the Regulation 23 as contended.
21. On the other hand, this Court is of the opinion that the nature of order passed under Regulation 23 with a non obstante clause therein is a more serious and drastic provision to check and prevent with immediate effect the on going illegal activities by the Customs Brokers. That is why an overriding and pervasive power has been conferred upon the learned Commissioner of Customs to immediately prohibit any Customs Brokers from working in one or more Sections of the Customs Station if he finds that the Customs Broker has not fulfilled his obligations as laid down in Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 35/41 Regulation 11 which inter alia lays down several obligations contained in Clause (a) to (o) of Regulation 11 and as submitted at bar by the learned counsel for the Revenue. Clause 11 (e) inter alia enjoins upon the Customs Broker 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 baggage. Therefore, the Customs Broker cannot completely disentangle himself or distance himself from the mis-declaration made on behalf of the importers or by the importers themselves. While working under these Regulations, he undoubtedly acts as an agent of the Importer and his acts bind the Importer as the Principal. The purposes of these Regulations are obviously to prevent evasion of custom duties and illegal activities and declarations to evade duties to be checked and various consequences in these Regulations have been provided for including “prohibition” from functioning, suspension of licence Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 36/41 which is India-wide permission or even cancellation thereof. Regulation 23 does not in its own terms provide for any temporary or permanent prohibition. The said prohibition by the terms of Regulation 23 can continue even for an indefinite period. While the suspension and revocation of licence completely bar and ban the business of the Customs Brokers on all-India basis, the “prohibition” under Regulation 23 may have the effect only for a particular Section or Sections of the particular territorial jurisdiction of the Customs Station. The non obstante provisions of Regulation 23 to prohibit a Customs Broker from working in any Section of the particular territory of Customs Department, appears to have been enacted to put in place the effective measures against the illegal activities and evasion of duties and that is why the procedure of giving of a prior notice and opportunity of hearing appears to have not been deliberately provided for in the said Regulation 23. Nonetheless, the remedial measure to an aggrieved Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 37/41 person is provided for in the Scheme of the Act and Regulation 21 itself.
22. Therefore, this Court is of the clear opinion that even the orders passed under Regulation 23 of ‘Regulations of 2013’ are appealable under Section 129- A of the Act read with Regulation 21 of the 2013 Regulations.
23. It goes without saying that the Departmental Authorities including the Appellate Authorities and also the CESTAT under Section 129-A of the Act are better equipped and manned with experts in the field to measure the pros and cons of the cases arising under the Customs Act, 1962 and therefore they are better disposed of to deal with the situations arising under the said ‘Regulations of 2013’ namely “prohibitions” under Regulation 23, suspension of licence under Regulation 19, cancellation of licence under Regulation 18 and imposition of penalty under Regulation 20. Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 38/41 24. As far as exercise of jurisdiction under Article 226 of the Constitution is concerned, it is well settled that the Rule of alternative remedy is not a Rule of bar of jurisdiction of this Court under Article 226 of the Constitution of India, but a Rule of discretion invoked by the Court in its extra-ordinary jurisdiction and this Court would be slow in invoking the extra-ordinary jurisdiction under Article 226 of the Constitution of India, if the order impugned before it have not passed through the Forums of appellate remedies provided under the relevant statutes. The purpose is that the Authorities created under the relevant statute must apply their mind to the relevant facts, evidence, objections and submissions of the rival parties, assessee on the one hand, revenue on the other hand and record their own reasons in writing for taking a particular view of the matter on either side of the issues so that the Constitutional Courts have the benefit of the final Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 39/41 orders passed by such Authorities created under the statute and are not called upon to decide the issues prematurely without the Authorities under the Act in a hierarchy of channels provided under the relevant statutes apply their mind and pass appropriate orders.
25. Once this Court comes to the conclusion as it had already laid down in the earlier case in the case of M/s. Capricorn Logistics Pvt. Ltd.(supra) that the impugned order under Regulation 23 is an appealable order before the CESTAT under Section 129-A of the Act read with Regulation 21, it is not considered appropriate to touch the merits of the case and deal with the same, lest it prejudices the case of either of the parties before the Tribunal. It appears that on account of ex-parte interim order granted in the present case by the co- ordinate bench on 23/03/2016 staying all further proceedings in pursuance of Annexure B which is the impugned order under Regulation 23, the Respondent Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 40/41 Customs Department has not been able to take any further proceedings in pursuance of the impugned order Annexure B under Regulation 23.
26. Under these circumstances, the present writ petition is disposed of as not maintainable with a liberty to the petitioner assessee to avail the remedy by way of an appeal under Section 129-A of the Act read with Regulation 21 before the Tribunal, if so advised in accordance with law.
27. The learned counsel for the petitioner, at this stage has submitted that the petitioner assessee would file an appeal under Section 129-A of the Act before the Tribunal and a period of four weeks may be allowed to the assessee to prefer the appeal before CESTAT against the impugned order Annexure B dated 16/03/2016 passed under Regulation 23. He has further prayed that the delay in filing such appeal may be condoned Date of Order 06-02-2018 W.P.No.15866/2016 M/s. Cargomar Vs. Union of India & Anr. 41/41 since the petitioner assessee was pursuing the writ petition before this Court.
28. The said prayer of the learned counsel for the petitioner is not seriously opposed by the learned counsel for Respondent Department.
29. In view thereof, it is directed that if the aforesaid appeal is filed by the assessee petitioner within a period of four weeks from today, the Tribunal is requested to consider the appeal on merits in accordance with law, without raising any objection on the ground of limitation in filing such appeal.
30. With the above observations, the present writ petition stands disposed of. No costs. Sd/- JUDGE BMV*