Rajiv Kant Mishra and anr. Vs. Union of India, Through the Chief Commissioner of Customs and - Court Judgment

SooperKanoon Citationsooperkanoon.com/1098598
CourtKolkata High Court
Decided OnNov-13-2013
JudgeHARISH TANDON
AppellantRajiv Kant Mishra and anr.
RespondentUnion of India, Through the Chief Commissioner of Customs and
Excerpt:
order sheet w.p.982 of 2013 in the high court at calcutta constitutional writ jurisdiction original side rajiv kant mishra & anr. versus union of india, through the chief commissioner of customs & anr. before: the hon'ble justice harish tandon date: 13th november, 2013. appearance: mr.s.b. saraf, adv.mrs.s.mitra, adv.… for the customs the court: the petitioners have assailed the order dated 3rd september, 2013 passed by the commissioner of customs (airport and administration).custom house, kolkata, whereby and whereunder the order of suspension of licence is confirmed with further stipulation to initiate a proceeding for revoking the said licence under the provisions of customs house agents licensing regulations, 2004, which can only be invoked where an immediate action is required in appropriate case. the authorities have passed the impugned order in relation to the petitioners’ act done in the year 2010 and the same cannot be a ground to suspend the licence under the aforesaid provisions calling for an immediate action. to buttress the aforesaid submissions the petitioners relied upon a division bench judgment of this court in the case of n.c.singha & sons versus union of india; reported in 1998 (104) elt11(cal).according to the petitioners.the provision contained under the sub-regulation (2) of regulation 20 of the regulations 2004 is preventive and not punitive and, therefore, the authorities should have provided the cogent reasons requiring immediate suspension which is apparently absent in the present case. the respondents took a preliminary objection relating to the maintainability of the writ petition in this court. the attention of the court is drawn to regulation 20(2) of the aforesaid regulations which provides an appeal before the customs.central excise service tax appellate tribunal against any order passed under regulation 20 thereof. the respondents vehemently submit that the petitioners cannot jump the forum by taking shelter under the power of judicial review as enshrined under article 226 of the constitution of india. it is beyond doubt that the regulations 2004 is applicable in the present case and the commission of customs is a competent authority to pass an order under regulations 20(2) of the said regulations. what is tried to be contended by the petitioners is that the ground indicated in the said order does not envisage an immediate action to be taken for suspension of the licence, more particularly, when the act as complained of was a subject matter of a previous proceeding which, though, decided against the petitioners but the matter is still sub-judice before the appellate authority. the division bench also held in the case of s.n.singha & sons (supra) that the order must reflect the valid and cogent grounds for taking an immediate action as contemplated under regulation 20(2) of the said regulations. there is no quarrel to the proposition as laid down by the division bench but the high court should be cautious and slow in interfering with the order which is otherwise amenable to be challenged before a statutory appellate authority. the court imposes a self-restraint in entertaining the writ petition when efficacious alternative remedy is available to the litigant. the point tried to be raised by the petitioners.in my opinion, strikes at the merit of the order and in view of the provision for an appeal before the tribunal, this court refrains from making any observations thereupon. since there is an efficacious remedy by way of a statutory appeal provided under sub-regulation 8 of regulation 22 against an order passed under regulation 20 of the regulations 2004, this court dismisses the writ petition on the preliminary point, which shall not preclude and/or prevent the petitioners to assail the order before the appropriate forum. for abundant precaution it is once again recorded that dismissal of the writ petition shall not stand in the way of the petitioners in challenging the self-same order before the appropriate forum, if it is otherwise competent and entertainable. urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities. (harish tandon, j.) sg2
Judgment:

ORDER

SHEET W.P.982 of 2013 IN THE HIGH COURT AT CALCUTTA CONSTITUTIONAL WRIT JURISDICTION ORIGINAL SIDE RAJIV KANT MISHRA & ANR.

Versus UNION OF INDIA, THROUGH THE CHIEF COMMISSIONER OF CUSTOMS & ANR.

BEFORE: The Hon'ble JUSTICE HARISH TANDON Date: 13th November, 2013.

Appearance: Mr.S.B.

Saraf, Adv.Mrs.S.Mitra, Adv.… for the Customs The Court: The petitioners have assailed the order dated 3rd September, 2013 passed by the Commissioner of Customs (Airport and Administration).Custom House, Kolkata, whereby and whereunder the order of suspension of licence is confirmed with further stipulation to initiate a proceeding for revoking the said licence under the provisions of Customs House Agents Licensing Regulations, 2004, which can only be invoked where an immediate action is required in appropriate case.

The authorities have passed the impugned order in relation to the petitioners’ act done in the year 2010 and the same cannot be a ground to suspend the licence under the aforesaid provisions calling for an immediate action.

To buttress the aforesaid submissions the petitioners relied upon a Division Bench judgment of this Court in the case of N.C.Singha & Sons versus Union of India; reported in 1998 (104) ELT11(Cal).According to the petitioneRs.the provision contained under the Sub-Regulation (2) of Regulation 20 of the Regulations 2004 is preventive and not punitive and, therefore, the authorities should have provided the cogent reasons requiring immediate suspension which is apparently absent in the present case.

The respondents took a preliminary objection relating to the maintainability of the writ petition in this Court.

The attention of the Court is drawn to Regulation 20(2) of the aforesaid Regulations which provides an appeal before the CustoMs.Central Excise Service Tax Appellate Tribunal against any order passed under Regulation 20 thereof.

The respondents vehemently submit that the petitioners cannot jump the forum by taking shelter under the power of judicial review as enshrined under Article 226 of the Constitution of India.

It is beyond doubt that the Regulations 2004 is applicable in the present case and the Commission of Customs is a competent authority to pass an order under Regulations 20(2) of the said Regulations.

What is tried to be contended by the petitioners is that the ground indicated in the said order does not envisage an immediate action to be taken for suspension of the licence, more particularly, when the act as complained of was a subject matter of a previous proceeding which, though, decided against the petitioners but the matter is still sub-judice before the appellate authority.

The Division Bench also held in the case of S.N.Singha & Sons (Supra) that the order must reflect the valid and cogent grounds for taking an immediate action as contemplated under Regulation 20(2) of the said Regulations.

There is no quarrel to the proposition as laid down by the Division Bench but the High Court should be cautious and slow in interfering with the order which is otherwise amenable to be challenged before a statutory appellate authority.

The Court imposes a self-restraint in entertaining the writ petition when efficacious alternative remedy is available to the litigant.

The point tried to be raised by the petitioneRs.in my opinion, strikes at the merit of the order and in view of the provision for an appeal before the tribunal, this Court refrains from making any observations thereupon.

Since there is an efficacious remedy by way of a statutory appeal provided under Sub-Regulation 8 of Regulation 22 against an order passed under Regulation 20 of the Regulations 2004, this Court dismisses the writ petition on the preliminary point, which shall not preclude and/or prevent the petitioners to assail the order before the appropriate forum.

For abundant precaution it is once again recorded that dismissal of the writ petition shall not stand in the way of the petitioners in challenging the self-same order before the appropriate forum, if it is otherwise competent and entertainable.

Urgent xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

(HARISH TANDON, J.) sg2