(Prayer: This Writ Petition is filed under Article 226 of the Constitution of India, seeking for a Writ of Certiorarified Mandamus to call for the records of File NO.R-698/CHA, leading to issuance of a decision in Order-in-Original No.38747/2015, dated 11.06.2015, quash the same as being without jurisdiction and direct the respondent to activate the petitioner's CHA/CB licence forthwith until its validity i.e., until 13.06.2017 in terms of the CHALR, 2004 read with the Custom Broker Licensing Regulations, 2013.)
1. Heard Dr. S.Krishnandh learned counsel appearing for Mr.B.Satish Sundar, learned counsel for the petitioner and Mrs.Hema Muralikrishnan learned Senior Panel counsel appearing for the respondent.
2. The petitioner was issued a Customs Broker licence under the Customs House Agent Licence Regulation, 2004,(CHALR), has filed this Writ Petition for issuance of a Writ of Certiorarified Mandmaus, to quash the order-in-original, dated 11.06.2015, passed by the respondent, in and by which, the respondent in exercise of powers conferred under the provision of Regulation 20(7) of the Customs Broker Licence Regulations, 2013 (CBLR), revoked the licence granted to the petitioner and ordered forfeiture of the full amount of security deposit furnished by the petitioner.
3. The facts leading to the impugned order are that the Docks Intelligence Unit (DIU), Custom House, Chennai, detained a container at Chennai International Terminal on 20.03.2013, for detailed examination. Before opening the container, the seals affixed in the container were examined in the presence of two independent witnesses, Customs Broker, Licence Agents, Freight Forwarder and CFS Authority, however efforts taken by the department to contact the exporter was in vain, as he could not be traced and stated to be absconding at the relevant time. The DIU team found that the riverts of the seal lock of the container, where the seals were affixed, were found to be tampered. The container was opened and the cargo was examined in the presence of the two independent witnesses, Customs Broker, Licence Agents, etc., and it was found to contain 364 pieces of wooden logs of Red Sanders , weighing 13720kgs, whereas in the Shipping Bill, dated 04.03.2013, the cargo was declared as 16 pallets of Refractory Bricks . The investigation proceeded further, statement was recorded from the managing partner of the petitioner and after completing the other formalities, the petitioner was called upon to show cause, by show cause notice dated 19.02.2014, as to why their licence should not be revoked and the security deposited by them should not be forfeited or penalty should not be imposed upon them under Regulation 18 of the CBLR, for the failure to comply with the provisions of the Regulations. An Inquiry Officer was appointed to inquire into the grounds, which were not admitted by the petitioner. The respondent would state that the petitioner did not appear for personal hearings offered to them by the Inquiry Officer on 17.10.2014, 27.10.2014 and 28.10.2014 and did not submit any oral or written submissions. Hence, the Inquiry Officer submitted his report concluding that the petitioner has not followed the KYC norms prescribed by the Central Board of Excise and Customs (CBEC), vide Circular dated 08.04.2010, and failed to comply with the conditions of the bond executed by them under Regulation 10 [in terms of Regulation 20(a)]; failed to comply with the provisions of 13(a), 13(b), 13(d) and 13(e), in terms of Regulation 20(b) of CHALR and proved professional misconduct and indulged in breach of trust reposed on them. The copy of the inquiry report was forwarded to the petitioner on 08.01.2015, with a copy marked to the counsel for the petitioner. Thereupon, the counsel for the petitioner submitted a reply dated 21.01.2015, stating that the show cause notice or inquiry report has not been served on the petitioner and perusal of the department's communication dated 08.01.2015, showed that the report was sent to their client to the postal address at No.181, Linghi Chetty Street, First Floor, Chennai 600001, and it is presumed that even the show cause notice dated 19.02.2014, was also sent to the same address; the notices for personal hearings were never received by the petitioner. It was further mentioned that the petitioner vide their letter dated 10.02.2011, informed the department about their change of address along with a copy of rental agreement of their new address which was duly received and acknowledged. Thus, it was their submission that despite the receipt of the intimation of change of address of the business premises, all communications were sent to the old address and there was no way that the petitioner could have received the same and responded to the said communications. Therefore, it was submitted the inquiry culminating in a report, dated 31.12.2014, was an exercise in futility, as no notice was received by the petitioner. With these submissions, the petitioner's counsel requested that the petitioner be served a copy of the show cause notice and fresh proceedings initiated after giving the petitioner sufficient time to submit their reply to the show cause notice. After receipt of the letter from the petitioner's counsel, personal hearing was granted to the petitioner on 22.04.2015, by the respondent during which, the counsel reiterated the written submissions, dated 21.01.2015, and sought for setting aside the inquiry report requesting a fresh hearing in the matter and also informed that the proceedings are pending before the CESTAT with regard to the order extending the suspension of the petitioner's Customs Broker Licence. On these contentions, the respondent while adjudicating the show cause notice and passing the impugned order recorded that the copy of the order of suspension, dated 17.05.2013, under Regulation 20(2) of the CHALR, was addressed to the petitioner at No.181, Linghi Chetty Street, First Floor, Chennai 600001, which had been received by them in person on 20.05.2013 and also by post; the counsel for the petitioner had attended the post decisional hearing on 27.05.2013 and filed written submissions on 29.05.2013 and there was no mention about the change of address at the time of personal hearing or in the written submissions. An order-in-original dated 14.06.2013, continuing the suspension was passed and the same was sent to the petitioner at the above referred address, which was received by them on 16.06.2013, again in person and aggrieved by such order, the petitioner has preferred an appeal to the CESTAT on 10.07.2013. In the appeal memorandum filed before the CESTAT, the address of the petitioner has been given as No.181, Linghi Chetty Street, First Floor, Chennai 600001 and the same is the address in the statement of facts, as well. While stating that it may be true that the petitioner had submitted intimation regarding the change of address on 10.02.2011, the discrepancies of not taking note of the same in the record of the department should have been brought to the notice of the respondent by the petitioner at the time of receiving the copies of the order of suspension, dated 17.05.2013, and order-in-original, dated 14.06.2013, or atleast at the time of personal hearing before the respondent. It was further observed that though the change of address had been intimated on 10.02.2011, however, as late as 10.07.2013, the petitioner showed the address at No.181, Linghi Chetty Street, First Floor, Chennai 600001, as their address in the appeal before the CESTAT. Thus, the respondent concluded the petitioner is very well operating at the same premises and at such distant point of time, raising such contention, is not tenable, as they have received the order-in-original in person. Thus, the contention raised by the petitioner was rejected, as it appeared to be a delaying tactics. There upon, the respondent has discussed on the factual aspects and passed the impugned order revoking the petitioner's Customs Broker Licence.
4. Dr.S.Krishnandh, learned counsel for the petitioner submitted that the impugned order is challenged primarily on two grounds, namely, that the incident occurred on 04.03.2013, which resulted in an order of immediate suspension of the petitioner's Customs Broker licence by order dated 17.05.2013, after which show cause notice was issued on 19.02.2014 and inquiry report was submitted on 13.02.2014 and based on which, the case was adjudicated by the respondent and impugned order was passed on 11.06.2015.
5. The learned counsel argued that in terms of Regulation 20(1) of the CBLR, the show cause notice issued was well beyond the period of 90 days from the date of receipt of the offence report, as it was issued after a lapse of nine months. By referring to Regulation 20(5), it is submitted that the inquiry report should be submitted within a period of 90 days from the date of issuance of notice under sub-regulation (1) of Regulation 20, but it was issued after 10 months from the date of such notice, on 13.12.2014. Further, it is submitted that the orders could have been passed by the authority within 90 days from the date of submission of the inquiry report, whereas the impugned order has been passed on 11.06.2015, after six months from the date on which the report was submitted by the Inquiry Officer.
6. Thus, the contention raised by the petitioner is that commencing from the issuance of the order of immediate suspension culminating in the impugned order revoking the licence, the entire proceedings are barred by limitation. In support of such contention, reliance was placed on the decision of the Hon'ble Division Bench in the case of The Commissioner of Customs (Imports), and Anr., vs. M/s.A.M.Ahmed and Co., in W.A.No.371 of 2015, dated 02.07.2015, and the decisions of the Delhi High Court in the case of Impexnet Logistic vs. Commissioner of Customs (General) reported in 2016-TIOL-1069-HC-Del-Cus, Indair Carrier Pvt Ltd., vs.Commissioner of Customs (General), reported in2016-TIOL-111-HC-DEL-CUS, HLPL Global Logistics Pvt Ltd., vs. The Commissioner of Customs (General) reported in 2016-TIOL-1119-HC-DEL-CUS, Burleigh International vs. The Commissioner of Customs (Import), reported in 2016-TIOL-1123-HC-DEL-CUS, and M/s.Sunil Dutt vs. Commissioner of Customs (General) reported in 2016-TIOL-1135-HC-DEL-CUS.
7. The learned counsel further referring to the letter given by the petitioner intimating the change of address to the Deputy Commissioner of Customs, CHA Units, Chennai Customs House, dated 10.02.2011, submitted that the change of address was intimated on the said date enclosing copy of the rental agreement and acknowledged by concerned department. Therefore, the petitioner did not receive any such communication from the department. Further, the respondent cannot reply upon the receipt of the copy of the communication dated 09.04.2015, to the counsel for the petitioner as proof of service of the same on the petitioner. Since the impugned order was primarily challenged on the above two grounds, the learned Senior Standing counsel for the respondent was directed to get instructions and make submissions. Pursuant to such order dated 19.07.2016, the respondent has filed their counter affidavit restricting it only to the above two points, urged by the learned counsel for the petitioner, with liberty to file a detailed counter affidavit, if a need arises at a later point of time.
8. As only two contentions were raised by the petitioner, as mentioned, this Court examined the correctness of the impugned proceedings only on two grounds, which have been urged before the Court namely on the ground of limitation and non-service of notices and orders on the petitioner. With regard to the plea of limitation, the respondent would submit that the case of the petitioner is that the time frame specified in Regulation 20 of the CBLR has not been adhered to, for which the respondent would submit that the offence was committed in March 2013 and the relevant regulation in force at that point of time was CHALR and CBLR, 2013, came into force only from 21.06.2013.
9. In terms of Regulation 20(2) of the CHALR, the respondent was empowered to suspend the licences were inquiry against the petitioner is pending or contemplated. The petitioner's licence was suspended invoking the power under Regulation 20(2) of the CHALR, 2004, after which the inquiry was conducted. Referring to Regulation 22 of the CHALR, it is submitted by the respondents that the said Regulation stipulates the procedure for suspending or revoking licence under Regulation 20 and Regulation 22 of the CHALR does not specify any time limit of 90 days for issuance of show cause notice and Regulation 22(1) of the CHALR provided for granting time of not less than 45 days to the Customs House Agent to submit written statement of defence. Thus, the respondent would contend that proceedings against the petitioner commenced, when CHALR was in force, which did not stipulate any time limit for revoking the licence under Regulation 22. It is further submitted that when CBLR was notified in exercise of the powers conferred under Section 146(2) of the Customs Act, 1962 and in super session of the CHALR, an exception was carved out in respect of things done or omitted to be done before such super-session. Therefore, it is submitted that the 2013 CBLR will apply to all cases except in respect of things done under CHALR before super-session of CHALR and in the present case proceedings for suspension or revocation were initiated under Regulation 22 of the CHALR, 2004. Therefore, the impugned proceedings being in continuation of the proceedings initiated under CHALR is valid and not barred by limitation.
10. With regard to the plea that copies of the notices, inquiry report, orders were not served on the petitioner and with regard to the intimation of the change of address, the respondent would state that the show cause notice dated 19.02.2014, was despatched to the petitioner on the same date by speed post and further letters intimating personal hearing by the inquiry Officer were not returned undelivered and in respect of the contention that change of address was intimated, it is submitted that the order of suspension dated 17.05.2013, was received by the petitioner at No.181, Linghi Chetty Street, First Floor, Chennai 600001, i.e., the original address of the petitioner and even in the appeal filed by the petitioner before CESTAT, the same address has been given. Therefore, it is submitted that it is incorrect on the part of the petitioner to contend that the notices were sent to the old address and not received by them. Adding to the above submission, it is submitted that even though the petitioner claims that it changed the place of business in 2011, the order of suspension, dated 17.05.2013, was received by the petitioner in the same old address, which shows that the petitioner has been receiving all correspondence at the said address. With these submissions, it was contended that the present plea raised by the petitioner by referring to the intimation of change of address does not merit consideration and it is a pure after thought.
11. Heard the learned counsels appearing for the parties and perused the materials placed on record.
12. Before venturing to consider the two aspects, which was argued before this Court challenging the impugned order namely, limitation and non-service of notices and orders, it would be necessary to take note of the relevant regulations namely, CHALR 2004 and CBLR 2013 and the following would be relevant:-
20. Suspension or revocation of licence.-
(1) The Commissioner of Customs may, subject to the provisions of regulation 22, revoke the licence of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part or whole of security, on any of the following grounds, namely :-(a) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under regulation 10;(b) failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else;(c) any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or any where else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station.(2) Notwithstanding anything contained in sub-regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, within fifteen days from the date of receipt of a report from investigating authority, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated.(3) Where a licence is suspended under sub-regulation (2), notwithstanding the procedure specified under regulation 22, the Commissioner of Customs may, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs House Agent whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs House Agent.
22. Procedure for suspending or revoking licence under Regulation 20.-
(1) The Commissioner of Customs shall issue a notice in writing to the Customs House Agent within ninety days from the date of receipt of offence report, stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said Customs House Agent 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 House Agent desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs.
Provided that the procedure prescribed in regulation 22 shall not apply in respect of the provisions contained in sub-regulation (2) to regulation 20.
(2) The Commissioner of Customs may, on receipt of the written statement from the Customs House Agent, 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 to inquire into the grounds which are not admitted by the Customs House Agent.(3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs 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 House Agent, for the purpose of ascertaining the correct position.(4) The Customs House Agent 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 shall prepare a report of the inquiry recording his findings and submit his report within ninety days from the date of issue of a notice under sub-regulation (1).(6) The Commissioner of Customs shall furnish to the Customs House Agent a copy of the report of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, and shall require the Customs House Agent to submit, within the specified period not being less than thirty days, any representation that he may wish to make against the findings of the Deputy Commissioner of Customs or Assistant Commissioner of Customs.(7) The Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs House Agent, pass such orders as he deems fit 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).(8) Any Customs House Agent aggrieved by any decision or order passed under regulation 20 or sub-regulation (7) of regulation 22, 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.
In Exercise of the powers conferred by sub-section (2) of section 146 of the Customs Act, 1962 (52 of 1962), and in super session of the Customs House Agents Licencing Regulations, 2004, except as respect things done or omitted to be done before such super session, the Central Board of Excise and Customs hereby makes the following regulations.
13. In terms of CHALR, the Commissioner of Customs under the Regulation 20 therein was conferred power to revoke the license of a Custom House Agent and order for forfeiture of the security upon his failure/misconduct as mentioned in Clause (a) to (c) under Regulation 20(1), Regulation 20(2) commence with an non obstante clause, confers power on the Commissioner of Customs to suspend the license with immediate effect when an inquiry against such agent is pending or contemplated. This power if invoked requires a post decisional opportunity being granted to the licensee within 15 days of such suspension giving opportunity of hearing and make such order either revoking the suspension or continuing the same.
14. Regulation 22 deals with the procedure to be followed, while suspending or revoking the license under Regulation 20. On a plain reading of the said provision shows that there is no time limit prescribed within which orders have to be passed by the Commissioner nor there is any cut off time prescribed so as to invalidate any action done. The sheet anchor of the contention of the learned counsel for the petitioner is that the Customs Broker Licensing Regulation (CBLR), 2013 [which came into effect from 21.06.2013], under Regulation 20(1) therein, prescribes a time limit within which notice should be issued and the time within which inquiry has to be completed, report to be submitted and the time within which action has to be initiated. Thus, by applying the said Regulation 20 of the CBLR, it is submitted that the entire proceedings are vitiated. However, the most important aspect which has to be taken note is that while notifying CBLR vide notification dated 21.06.2013 it was stated that the same has been made in exercise of the powers conferred under Section 146(2) of the Customs Act, 1962 in super-session of CHALR, 2004, except in respect of things done or omitted to be done before such super-session. Thus, what has been saved while invoking CBLR are actions which have been done or omitted to be done before the super-session of the CHALR by notification dated 21.06.2013. Therefore, the contention raised by the petitioner that the regulation CBLR should be applied to the petitioner's case and the Court should intervene at this stage and set aside the order in original without relegating the petitioner to prefer an appeal before the Tribunal does not merit consideration. The petitioner cannot dispute the fact that the CHALR does not prescribe any time limit for action being initiated and their contention is solely based upon the new Regulations CBLR, 2013, which is inapplicable.
15. Furthermore, the petitioner would place reliance on a circular issued by CBEC dated 08.04.2010 by which the Board prescribed certain time limits in cases warranting immediate suspension under Regulation 20(2). It is therefore submitted that the impugned order has been passed in utter disregard to the time limit fixed by the Board in the aforementioned circular. Though such contentions have been advanced not only by relying upon the circular issued by the Board and certain decisions of the Hon'ble Division Bench of this Court and other High Courts, a decision cannot be arrived at sans facts. Thus the conduct of the licensee is very relevant while examining as to whether the Department should be non-suited on the ground of delay. This finding is recorded bearing in mind that the fact CHALR, does not provide for a time limit for action being taken. What is stressed upon is circular issued by the CBEC. Even the said circular dated 08.04.2010 has been carefully worded and this is evident from the use of the expression ".... wherever it is possible to do so......". Further the circular states that the difficulties faced, if any, implementation of circular, changes made in the CHALR, 2004 may be brought to the notice of the Board immediately. Therefore, while applying the circular it has to be seen as to how the licensee conducted himself and this being a relevant factor cannot be ignored. The show cause notice dated 19.02.2014 was despatched to the petitioner by speed post and letters have been sent intimating personal hearing by Inquiry Officer and those communications are said to have not returned undelivered.
16. With regard to the contention that the petitioner had intimated his change of address, the respondent has taken a stand that the order of suspension dated 17.05.2013 was received by the petitioner at the old address. Therefore, the Department would contend that the petitioner's plea that notices sent to the old address are not received by them is an incorrect plea, which plea by the respondent merits acceptance. Thus, on the petitioner's own showing that even though they are said to have changed the place of business in 2011 and intimated the same to the CHA section, when the order of suspension was sent to the old address on 17.03.2013 i.e. after two years, the petitioner received the same. Thus, the Department is able to prima facie establish that the petitioner had the knowledge of the proceedings. The petitioner had been prolonging the issue which has been recorded by the respondent in the impugned order, wherein it has been stated that the petitioner did not appear for personal hearing offered to them by the Inquiry Officer on 17.10.2014, 27.10.2014 and 28.10.2014 and did not make any oral or written submissions. Therefore, the Inquiry Officer was left with no option except to give a report based on the available records. The report concludes that the petitioner has not followed the norms prescribed by various circulars issued by CBEC and failed to comply with the provisions of CHALR, 2004 and committed professional misconduct and indulged in breach of trust reposed on them.
17. The Inquiry Officer's report was forwarded to the petitioner on 08.01.2015 with a copy marked to their counsel. The petitioner through their counsel submitted a written reply on 21.01.2015 alleging that the show cause notice or inquiry report has not been served on the petitioner and they harped upon the stand that the Department's communication was sent to the old address and therefore, it is presumed that the show cause notice also would have been sent to the same address. While adjudicating the show cause notice and passing the impugned order, the respondent has specifically recorded that there is no mention about the change of address at the time of personal hearing on 27.05.2013 or in the petitioner's written submission dated 29.05.2013. The order of continuation of suspension dated 14.06.2013 was received by the petitioner in person on 16.06.2013. Aggrieved by which the petitioner preferred an appeal before the CESTAT and in the appeal, address given by the petitioner is No.181, Linghi Chetty Street, First Floor, Chennai 600 001, which admittedly is the old address . Thus in the considered view of this Court, the respondent rightly concluded that the petitioner has been adopting delaying tactics to obtain time for reasons best known to them.
18. In the light of the foregoing discussions, the twin contentions raised by the petitioner in this Writ Petition challenging the impugned order namely, with regard to the plea of limitation and non-service of notice and orders on the petitioner stand rejected and both contentions are answered against the petitioner. Hence, in respect of the other factual contentions that the petitioner may raise challenging the impugned order, it is appropriate that the petitioner should invoke the appellate remedy available under the provisions of the Act. The appellate remedy available to the petitioner is before the Tribunal which is the final Court of fact. The Tribunal is empowered to re-appreciate the factual contentions and come to a correct conclusion as to whether the stand taken by the petitioner is justified or not? The Tribunal can call for and examine the records of the Department to test the correctness of the petitioner's submissions. Therefore, the petitioner has to necessarily avail the alternative remedy.
19. As prefaced in this order, this Court had examined the correctness of the impugned order only on the two contentions advanced by the petitioner, as they were the only two grounds canvassed by the petitioner to justify their conduct in approaching this Court by way of a Writ Petition bypassing the appellate remedy. On a perusal of the impugned order, it is seen that the factual findings have been rendered by the respondent, which appear to be based on the statements recorded from various witnesses/noticees under Section 108 of the Customs Act. To examine these contentions, a thorough consideration of the factual position is required. The facts are seriously disputed and to consider the same, it would be necessary to adjudicate those disputed questions of fact, which obviously cannot be done in a Writ Petition and this was not permitted to be done before this Court at the very inception and that was preciously the reason for the petitioner to restrict their contentions in the Writ Petition on the above two grounds. Likewise, the counter affidavit filed by the respondent was only restricted to those two contentions raised by the petitioner. Therefore, in respect of all other contentions, which the petitioner may raise, have to be necessarily done before the Appellate Tribunal.
20. In the light of the above findings, the Writ Petition is dismissed and the twin contentions raised by the petitioner in this Writ Petition are decided against the petitioner. However, it is left open to the petitioner to avail the appellate remedy before the CESTAT raising other factual contentions other than the two contentions, which have been negatived by this Court. If the petitioner avails the alternate remedy, the CESTAT while computing limitation shall exclude the period from 01.09.2015, when the Writ Petition was presented before this Court till the receipt of the certified copy of this order. No costs. Consequently, connected miscellaneous petition is closed.