2018 (6) TMI 656 - HC - Customs

Court dismisses writ petition, deems time limits directory, show-cause notice timely. Impugned order valid.

The court dismissed the writ petition, ruling it maintainable despite statutory remedy availability. It determined the time limits in the regulations as ... Revocation of CHA License - failure to discharge obligations under Regulation 11(n) of the Customs Brokers Licensing Regulations, 2013 - time limitation - maintainability of petition - Is a writ petition challenging an order in original on the ground of lack of jurisdiction maintainable, despite the availability of statutory alternative remedy? - Are the time limits prescribed in Regulation 22 of the Regulations of 2004 and Regulation 20 of the Regulations of 2013 mandatory or directory? Held that:- Madras and the Delhi High Courts are of the view that, the time period stipulated in Regulation 22 of the Regulations of 2004 and Regulation 20 of the Regulations of 2013 are mandatory and not directory - Regulations of 2004 as well as the Regulations of 2013 are products of exercise of powers under Section 146 of the Customs Act, 1962. Both the Regulations regulate the affairs of a Customs House Agent, subsequently known as the Customs Agent in the Regulations of 2013. Regulation 22 of the Regulations of 2004 and Regulation 20 of the Regulation 2013 deal with the power to revoke a licence granted. Both the Regulations stipulate time limits. None of the Regulations, however, provide for the consequence of not adhering to the time limit prescribed. The consequence of non-adherence to the time limit being not provided for in either of the two Regulations, it is open to an interpretation that, the time limits prescribed are not mandatory. The fact that, the order in original dated February 25, 2015 was received by the authority concerned, invoking the provisions of the Regulations of 2004 on March 27, 2017, is not disputed on behalf of the petitioner. Nothing to the contrary is established by the petitioner. The show-cause notice under the Regulations of 2004 was issued on June 23, 2017. The impugned show-cause notice is, therefore, within the period of 90 days from the date of receipt of the order in original dated February 25, 2015, and the same can be considered as the offence report for the purposes of Regulation 22 of the Regulations of 2004, in the facts of the present case - in the facts of the present case, the show-cause notice issued on June 23, 2017 cannot be said to be barred by limitation. The show-cause notice being within limitation, the authority acted within jurisdiction in issuing it and adjudicating thereon. The impugned order does not suffer for lack of jurisdiction. Appeal dismissed - decided against petitioner. Issues Involved:1. Maintainability of writ petition despite statutory alternative remedy.2. Mandatory or directory nature of time limits in Regulation 22 of 2004 and Regulation 20 of 2013.3. Barred by limitation of show-cause notice dated June 23, 2017.4. Jurisdictional validity of the impugned order if the show-cause notice is time-barred.5. Effect of citing the Regulations of 2013 in the impugned order.6. Entitlement to reliefs for the parties.Issue-wise Detailed Analysis:1. Maintainability of Writ Petition:The petitioner argued that the writ petition is maintainable despite the availability of a statutory appeal because the impugned order was passed without jurisdiction. The court referenced Indair Carrier Pvt. Ltd., which held that issues of limitation can be raised in writ jurisdiction despite alternative remedies. The court concluded that the writ petition is maintainable as it raises issues of jurisdiction.2. Nature of Time Limits in Regulations:The court examined whether the time limits prescribed in Regulation 22 of the 2004 Regulations and Regulation 20 of the 2013 Regulations are mandatory or directory. The court noted differing views from various High Courts, with some considering the time limits mandatory and others directory. The court aligned with the view that the time limits are directory, not mandatory, as the regulations do not prescribe consequences for non-adherence. This interpretation aligns with the principle that statutory time limits without specified consequences are generally considered directory.3. Limitation of Show-Cause Notice:The petitioner argued that the show-cause notice dated June 23, 2017, was barred by limitation. The court found that the respondent authority received the order in original on March 27, 2017, and issued the show-cause notice within 90 days, thus within the prescribed time limit. The court treated the order in original as the offence report and held that the show-cause notice was not barred by limitation.4. Jurisdictional Validity of Impugned Order:Since the show-cause notice was issued within the prescribed time limit, the court held that the authority acted within its jurisdiction. Therefore, the impugned order did not suffer from a lack of jurisdiction.5. Citing Regulations of 2013:The petitioner contended that the impugned order was vitiated by referring to the 2013 Regulations instead of the 2004 Regulations. The court noted that both regulations contain similar provisions regarding the obligations of a Customs Broker/Agent. The court referenced Supreme Court judgments, which held that quoting a wrong provision does not invalidate the order if the power exists under a different provision. The court found no prejudice caused to the petitioner by the reference to the 2013 Regulations and upheld the impugned order.6. Reliefs Entitled:The court concluded that the petitioner was not entitled to any relief as the writ petition lacked merit. The writ petition was dismissed with no order as to costs.Conclusion:The court dismissed the writ petition, holding that the writ petition was maintainable, the time limits in the regulations were directory, the show-cause notice was within the prescribed time limit, the impugned order was within jurisdiction, and the reference to the 2013 Regulations did not vitiate the order. No relief was granted to the petitioner.