2015 (8) TMI 627 - HC - Customs

Court quashes premature prohibition order, upholds fair hearing rights for businesses.

SSS SAI SHIPPING SERVICES PVT LTD & 1 Versus UNION OF INDIA & 1

The court allowed the petition, quashing the prohibition order dated 28.02.2015. Emphasizing the need for a fair hearing before restricting business ... Prohibition to work as CHA – Non-payment of Duty – Non-compliance of Regulation, 2004 – Goods were cleared, however, importer had not paid duty and therefore, respondent No. 2 issued show cause notice to importer as well as Custom House Agent-petitioner – By impugned order of respondent No.2, petitioner was prohibited to work as Customs House Agent under regulation 21 of Regulations, 2004 – Held that:- admittedly applicability of penalty under Section 114A of Customs Act, 1962 was pending before authority for adjudication – If regulation 13(d) and 13(e) were perused, question with regard to alleged breach of obligations by petitioner was pending before authority pursuant to show cause notice and which is yet not been finalized – Impugned order was passed and petitioner was prohibited to work as Customs House Agent –It was expected from authority that before passing of such type of orders, citizen should be heard even if there were no specific provisions under Regulations – Citizen cannot be denied his rights to carry out his business for indefinite period on those grounds and on same set of facts when proceedings were going on before same authority – Hence, petition was required to be allowed –Impugned order prohibiting work hereby quash – Decided in favour of Petitioner. Issues Involved:1. Legality of the prohibition order against the petitioner under Regulation 21 of the Customs House Agents Licensing Regulations, 2004.2. Alleged breach of Regulation 13(d) and 13(e) of the Customs House Agents Licensing Regulations, 2004.3. Right to be heard before the issuance of a prohibition order.4. Jurisdiction of the authority to issue the prohibition order.Detailed Analysis:1. Legality of the Prohibition Order:The petitioner challenged the prohibition order dated 28.02.2015 issued by respondent No. 2, which prohibited the petitioner from working as a Customs House Agent (CHA) at Customs House, Pipavav. The order was issued under Regulation 21 of the Customs House Agents Licensing Regulations, 2004, citing violations of Regulation 13(d) and 13(e). The court found that the prohibition order was issued prematurely, without giving the petitioner a fair opportunity to respond to the show cause notice and corrigendum, thus rendering the order legally unsound.2. Alleged Breach of Regulation 13(d) and 13(e):The petitioner was accused of failing to advise the importer to comply with the customs provisions and not bringing the matter to the department's notice, as required under Regulation 13(d) and 13(e). The court noted that these allegations were still pending adjudication and that the prohibition order was based on these yet-to-be-finalized grounds. The court emphasized that the prohibition should not have been issued while the proceedings were still ongoing.3. Right to be Heard:The petitioner argued that the prohibition order was issued without giving them an opportunity to be heard, violating the principles of natural justice. The court agreed, stating that even if there is no specific provision for a hearing under the Regulations, a citizen's right to carry out their business should not be indefinitely suspended without a fair hearing. The court highlighted the need for procedural fairness before issuing such prohibitive orders.4. Jurisdiction of the Authority:The petitioner contended that only the Mumbai office, which issued their CHA license, had the authority to take action against them under Regulation 20 of the Regulations, 2004. The court observed that the Mumbai office had not initiated any proceedings against the petitioner, and the respondent authority in Jamnagar acted beyond its jurisdiction by issuing the prohibition order. The court found that the respondent authority's action affected the petitioner's fundamental rights to conduct business.Conclusion:The court allowed the petition, quashing and setting aside the prohibition order dated 28.02.2015. The court emphasized the importance of providing a fair hearing before issuing orders that affect a citizen's right to conduct business. The prohibition order was deemed premature and legally unsound as it was based on pending allegations and issued without jurisdiction. The court ruled in favor of the petitioner, ensuring their right to carry out business activities in accordance with the law.