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2016 DIGILAW 657 (MAD)

Sevenways Shipping Services v. Commissioner of Customs

2016-02-19

M.DURAISWAMY

body2016
ORDER : The petitioner has filed the above writ petition to issue a Writ of Certiorari to quash the order in original No.41097/2015, dated 2.9.2015 passed by the respondent as the same is arbitrary and contrary to law. 2. According to the petitioner, the impugned order passed by the respondent is in violation of principles of natural justice. The petitioner was issued with the Customs House Agent Licence No.R-522/CHA issued by the respondent with validity upto 19.03.2014. On 06.07.2012, the respondent invoking the provisions of Regulation 20(2) of the Customs House Agent Licensing Regulations, 2004, ordered for suspension of petitioner's CHA licence, however, afforded an opportunity of personal hearing to the petitioner on 25.07.2012. The petitioner appeared for the personal hearing through his counsel and filed written submissions dated 30.07.2012 assailing the allegations levelled against the petitioner for suspending its licence. After considering the written submissions filed on behalf of the petitioner, the respondent, by order dated 09.08.2012, confirmed the order of suspension and ordered for continuation of suspension of the CHA licence. The respondent had given a finding that the petitioner had violated the provisions of Regulations 13(i) of the Customs House Agent Licensing Regulations, 2004 and the petitioner had completely failed in fulfilling his obligations under the Regulations. Aggrieved over the suspension order, the petitioner filed statutory appeal before the Customs, Excise and Service Tax Appellate Tribunal, Chennai, along with an application for early hearing by the Tribunal. 3. According to the petitioner, though the petitioner's appeal was listed for hearing from time to time, the same was not taken up for hearing. On 16.09.2014, when the matter was listed for hearing, the same was adjourned to 20.11.2014. The Tribunal held that no show cause notice under Regulation 22(1) of the Customs House Agent Licensing Regulations, 2004 was issued. In such circumstances, the question of conducting enquiry by the Enquiry Officer did not arise. 4. The Tribunal heard the appeal pending before it in connection with the suspension of the CHA licence on 28.05.2015 and passed final order by allowing the petitioner's appeal. However, the respondent, by the impugned order dated 02.09.2015, revoked the licence under Regulation 20(7) of the Custom Broker Licensing Regulations, 2013, since the licence is valid only upto 19.03.2014. 5. 4. The Tribunal heard the appeal pending before it in connection with the suspension of the CHA licence on 28.05.2015 and passed final order by allowing the petitioner's appeal. However, the respondent, by the impugned order dated 02.09.2015, revoked the licence under Regulation 20(7) of the Custom Broker Licensing Regulations, 2013, since the licence is valid only upto 19.03.2014. 5. Though the appeal preferred by the petitioner as against the order of suspension was pending, an Enquiry Officer was appointed by the respondent, however, no show cause notice in respect of such enquiry as contemplated under section 22(1) of the Customs House Agent Licensing Regulations, 2004 was issued to the petitioner, thereby, vitiated the enquiry proceedings. The Enquiry Officer, has conducted the enquiry on 22.09.2014, without issuing any show cause notice and an opportunity of personal hearing to the petitioner, when the role of Enquiry Officer was under the scrutiny of the Tribunal, the Tribunal should not have rejected the report of the Enquiry Officer. 6. Since the petitioner was not served with any show cause notice and given an opportunity of personal hearing, they had no opportunity to put-forth their case. Therefore, in the absence of any show cause notice as contemplated under Regulation 22(1), it is clear violation of principles of natural justice by the Enquiry Officer. 7. The respondent, in their counter, has not stated anything about the non-issuance of show cause notice or affording an opportunity of personal hearing to the petitioner. 8. Ms.Malliga Srinivas, learned counsel appearing for the respondent submitted that the writ petition filed by the petitioner is not maintainable, since appeal remedy is available tot he petitioner. 9. Since there is clear violation of principles of natural justice, I am of the view that the petitioner should be given relief in the writ petition filed under Article 226 of the Constitution of India. Therefore, the impugned order dated 2.9.2015 is liable to be set aside and the Enquiry Officer should be directed to conduct fresh Enquiry after issuing show cause notice and affording due opportunity of personal hearing to the petitioner. 10. Accordingly, the impugned order dated 02.09.2015 is set aside and the matter is remanded back to the respondent for fresh consideration. Therefore, the impugned order dated 2.9.2015 is liable to be set aside and the Enquiry Officer should be directed to conduct fresh Enquiry after issuing show cause notice and affording due opportunity of personal hearing to the petitioner. 10. Accordingly, the impugned order dated 02.09.2015 is set aside and the matter is remanded back to the respondent for fresh consideration. The Enquiry Officer is directed to issue show cause notice to the petitioner and the petitioner shall file their reply to the show cause notice and after the receipt of the reply and affording due opportunity of personal hearing to the petitioner, the Enquiry Officer is directed to decide matter afresh on merits and in accordance with law. Thereafter, the respondent is directed to consider the report of the Enquiry Officer and decide the matter afresh on merits and in accordance with law. With these observations, the writ petition is allowed. No costs.