Judgment:
In the High Court At Calcutta Constitutional Writ Jurisdiction Original Side WP205of 2015 M/S.Nepa Agency Co.PVT.Ltd & Anr -vs.Union of India & ORS.Before : The Hon’ble Justice Arijit Banerjee For the petitioner : R.K.Chowdhury, Adv.For the respondent : S.B.Saraf, Adv.S.K.
Saha, Adv.For DRI : Koushik Dey, Adv.Heard On : 06/04/2015, 08/04/2015 and 20/04/2015 CAV On : 27/04/2015 Judgment On : 13/05/2015 Arijit Banerjee, J.: (1) The petitioner No.1 is a Customs House Agent carrying on business as clearing and forwarding agent.
Under the Customs Broker Licensing Regulations, 2013, the Customs House Agents have been re-named as Customs BrokeRs.The petitioner holds Customs House Agent license issued by the Commissioner of Customs (Administration).Customs House, Calcutta.
(2) It is the case of the respondents that in July, 2013 the Directorate of Revenue Intelligence, Calcutta Zonal Unit informed the respondents that their office had seized a case wherein cigarettes were attempted to be smuggled into India by way of concealment inside a container declared to be containing dining sets through the Calcutta Port.
610 cartons of cigarettes of Indonesian origin having estimated value of Rs.4.35 crores were found concealed behind 80 dining sets.
The declared importer and Customs House Agent were M/S.A.K.International, Moradabad, Uttar Pradesh and the writ petitioner No.1 herein respectively.
During preliminary investigation it was found that the declared Customs House Agent namely the petitioner No.1 did not actually act as the agent but allowed some unauthorised persons to use its licence and name for clearance of the subject consignment.
(3) By an order dated 25th July, 2013 the Commissioner of Customs (Airport and Administration).Calcutta observed that an enquiry is contemplated against the petitioner No.1 under regulation 20 of Customs Brokers Licensing Regulations, 2013 and that pending completion of such enquiry, continuance of business transaction by the petitioner No.1 is considered prejudicial to the interest of revenue warranting immediate action under regulation 19 (1) of the said Regulations to prevent further misuse of the customs brokers licence.
With those observations, the Commissioner of Customs suspended the operation of the customs brokers license held by the petitioner No.1 with immediate effect.
(4) Inquiry was conducted against the petitioner-company and the suspension of license was confirmed by an order dated 11th September, 2013.
(5) Being aggrieved, the petitioner-company challenged the order of suspension of licence by filing WP No.153 of 2014 in this Court.
Before this Court it was urged by the petitioner-company that there was a breach of the principles of natural justice.
Copies of the statements recorded under Section 108 of the Customs Act, 1962 were not furnished to the petitioner-company and no opportunity was given to deal with such statements by cross-examination or otherwise.
(6) This court by its order dated 4th August, 2014 directed the Commissioner of Customs to review the suspension order by giving an opportunity to the petitioner-company to be heard and to contradict the Section 108 statements.
(7) Pursuant to the said order of this court the Commissioner of Customs (Airport and Administration) reviewed the earlier suspension order by giving an opportunity to the petitioner-company to be heard and to contradict the statements under Section 108 of the Customs Act.
By an order dated 25th November, 2014 the Commissioner of Customs confirmed the earlier order suspending the licence of the petitioner-company in terms of the Regulation 19 (2) of the Customs Brokers Licensing Regulations, 2013 and also confirming the proceedings already initiated for revoking the license of the petitionercompany under regulation 20 of the 2013 regulations.
It is this order of the Commissioner of Customs which is under challenge in the present writ petition.
(8) Appearing on behalf of the writ petitioneRs.Mr.Chowdhury, Ld.
Advocate has urged primarily three points.
Firstly, he urged that the statements of one Manoj Baid were relied upon by the department but Mr.Baid was not offered for cross-examination by the representative of the petitioner-company.
This was a blatant violation of principles of natural justice.
Secondly, he submitted that no opportunity was given to the petitioner company to make submission on merits including dealing with statements recorded during examination of witnesses.
This was also in breach of principles of natural justice.
Thirdly, he argued that there has been violation of regulation 20 of the Customs Brokers Licensing Regulations 2013 (in short CBLR, 2013).Regulation 20 in so far the same is relevant is set out hereinunder:“The Commissioner of Customs shall issue a notice in writing to the Customs Broker within a period of 90 days from the date of receipt of offence report, stating the grounds on which it is proposed to revoke the license or impose penalty requiring the said Customs Broker to submit within 30 days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defence and also to specify in the said statement whether the Customs Broker desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs.” (9) Mr.Chowdhury submitted that the offence report was received by the respondent authorities on 11th July, 2013 as would appear from the order of suspension of licence dated 25th July, 2013.
However, the show cause notice was issued on 11th February, 2014 that is much beyond 90 days from the date of receipt of offence report.
Hence, the show cause notice and all proceedings pursuant thereto are bad in law.
In this connection, Mr.Chowdhury relied on a decision of the Madras High Court in the case of A.M.Ahamed & Co.-vs.Commissioner of Customs (Imports).Chennai reported in 2014 (309) ELT433 Relying on the said decision Mr.Chowdhury submitted that the period of 90 days specified in regulation 20 is mandatory and not directory and any proceedings initiated by way of issuance of notice beyond the period of 90 days from the date of receipt of offence report will stand vitiated.
In the light of the aforesaid submissions Mr.Chowdhury prayed for quashing of the order impugned.
(10) Appearing on behalf of the respondents, Mr.S.B.Saraf, Ld.
Advocate disputed the submissions made on behalf of the petitioner-company.
Firstly he submitted that Mr.Manoj Baid was duly given notice to appear in the proceeding but he failed to turn up; in fact, he disappeared from the scenario altogether.
Mr.Baid’s licence had been revoked earlier by the customs authorities.
Secondly, Mr.Saraf referred to this Court’s order dated 4th August, 2014 and submitted that although in the said order there was no direction to allow the petitioner-company to conduct cross-examination of the witnesses whose statements were recorded but, in fact, such cross-examination was allowed.
In support of this he also referred to various correspondence exchanged between the parties.
He submitted that the proceedings were conducted by rigorously following the principles of natural justice.
Thirdly, Mr.Saraf submitted that the period of 90 days mentioned in regulation 20 of the CBLR, 2013 is only directory and issuance of notice beyond the period of 90 days from the date of receipt of offence report does not render the proceedings bad.
(11) The main point urged by Mr.Saraf was one of availability of an efficacious alternative remedy.
He referred regulation 21 of the CBLR2013which is set out hereunder:“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”.
Mr.Saraf submitted that since the CBLR2013provides an aggrieved Customs Broker with an alternative remedy, the writ application should not be entertained.
In this connection, he relied on a decision of the Hon’ble Supreme Court in the case of Union of India-vs.-Guwahati Carbon LTD.Reported in 2012 (278) ELT26 In that case the Hon’ble Supreme Court observed that when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner and all the other forums and modes of seeking remedy are excluded.
Mr.Saraf also relied on a division bench judgment of the Gujarat High Court in the case of Custom-vs.-H.
Kumar delivered in Special Civil Application No 1156 of 2002 wherein the Gujarat High Court, following the decision in the case of Union of India-vs.-Guwahati Karbon LTD.(Supra) refused to entertain a writ application in view of availability of alternative remedy in the form of an appeal under Section 35L of the Central Excise Act, 1944.
(12) On the point of natural justice, Mr.Sarf relied on a decision of the Hon’ble Supreme Court in the case of M/S.Kanungo & Co.-vs.-Collector of Customs reported in (1973) 2 SCC438 Ld.
Counsel relied on paragraph 12 of the judgement which is set out hereunder:“12.
We may fiRs.deal with the question of breach of natural justice.
On the material on record, in our opinion, there has been no such breach.
In the showcause notice issued on August 21, 1961, all the material on which the Customs Authorities have relied was set out and it was then for the appellant to give a suitable explanation.
The complaint of the appellant now is that all the persons from whom enquiries were alleged to have been made by the authorities should have been produced to enable it to cross-examine them.
In our-opinion, the principles of natural justice do not require that in matters like this the persons who have given information should be examined in the presence of the appellant or should be allowed to be cross-examined by them on the statements made before the Customs Authorities.
Accordingly we hold that there is no force in the third contention of the appellant.” (13) Mr.Saraf also relied on a decision of the Hon’ble Supreme Court in the case of A.S.Motors PVT.Ltd.-vs.-Union of India rendered in Civil Appeal No.1517 of 2013 (arising out of SLP (C) No.2490 of 2008).In the said case the Hon’ble Supreme Court observed that the principles of natural justice have undergone a sea change.
Presently the principle of law is that some real prejudice must have been caused to the complainant.
Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity.
To the principle/doctrine of audi alteram partem, the distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principle.
The court applies the principles of natural justice having regard to the affected situation obtaining in each case.
It is not applied in a vacuum without reference to the relevant facts and circumstances of the case.
It is no unruly horse.
It cannot be put in a strait-jacket formula.
(14) I have considered the rival contentions of the parties.
(15) The power under Article 226 of the Constitution of India is an extraordinary power and should be exercised by the High Courts only in those cases 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 causing prejudice to the petitioner (please see Union of India-vs.-Guwahati Carbon LTD.(Supra)).Prima facie, I do not find any patent illegality on the face of the order impugned or that principles of natural justice have been violated in any manner.
However, these observations of mine are only tentative in nature since I am minded to dispose of the writ petition on the grounds stated hereinafter.
(16) In Titaghur Paper Mills Co.Ltd.-vs.-State of Orissa reported in (1983) 2 SCC433 a three Judges Bench of the Hon’ble Supreme Court held that where an Act provides for a complete machinery to challenge an order of assessment, the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution.
Where right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of.
(17) In the case of Whirlpool Corporation-vs.-Registrar of Trade Marks reported in (1998) 8 SCC1 the Hon’ble Supreme Court observed that under Article 226 of the Constitution of India, the High Court having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition.
But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious alternative remedy is available, the High Court would not normally exercise its jurisdiction.
(18) There are several other decisions of the Hon’ble Supreme Court wherein it has been held that where a statute provides for an alternative remedy, High Courts should not exercise jurisdiction under Article 226 of the Constitution of India.
(19) The Customs law is a complete code by itself.
The Customs Act and the rules and bye-laws framed thereunder constitute a comprehensive and exhaustive code.
The impugned order in the instant case has been passed by the Commissioner of Customs in exercise of his power under the Customs Brokers Licensing Regulations, 2013 which are framed under Article 146 (2) of the Customs Act, 1962.
Regulation 21 provides that a Customs Broker who is aggrieved by any order passed by the Commissioner of Customs under the said regulations may prefer an appeal under Section 129A of the Customs Act to the CustoMs.Central Excise and Service Tax Appellate Tribunal.
The appeal as provided for, in my opinion, is an efficacious alternative remedy available to an aggrieved broker like the writ petitioner.
Indeed, I am of the view that the appeal is a more comprehensive remedy.
(20) In view of existence of the aforesaid alternative remedy, I am of the view that this court ought not to exercise its extraordinary power under Article 226 of the Constitution of India.
Accordingly, this writ application fails and is dismissed.
(21) However, if the petitioner approaches the CustoMs.Central Excise and Service Tax Appellate Tribunal by filing an appeal against the order sought to be impugned in this writ petition within a period of six weeks from date the Tribunal shall decide the appeal in accordance with law without being influenced by any observation in this order.
This application is accordingly disposed of.
(Arijit Banerjee, J.)