2019 (7) TMI 109 - HC - Customs

Court upholds order despite timing issue under CBLR. Appeal to CESTAT for quick resolution.

M/s. Shriwin Shipping & Logistics Versus The Commissioner of Customs, Chennai

The court held that the impugned order was not vitiated by the violation of the 90-day timeframe under Regulation 17(5) of CBLR 2018 or Regulation 20(5) ... Revocation of CBL License - forfeiture of security deposit - imposition of penalty - petition assailed on the ground of violation of sub Regulation (5) of Regulation 17 of CBLR 2018 - it is the specific and pointed case of the writ petitioner that the Assistant Commissioner of Customs has not filed the enquiry report within 90 days from the date of issue of SCN. Whether there is violation of 90 days time frame adumbrated in regulation 17(5) of CBLR 2018? HELD THAT:- In the instant case, SCN is dated 14.09.2018 and learned counsel for writ petitioner submitted that SCN was served on writ petitioner on 15.09.2018. However, the reply of writ petitioner, i.e., written statement of defence of writ petitioner was admittedly sent only on 22.11.2018, which is not within 30 days time limit for such reply stipulated in Regulation 20(1) of CBLR 2013 and 17(1) of CBLR 2018 - Therefore, 90 days time frame stipulated under Regulation 20(5) of CBLR 2013 can be tested only by taking 22.11.2018 as the reckoning date in this case as reply / statement of defence has been given by writ petitioner only on that date. The writ petitioner not having submitted its statement of defence to SCN within 30 days time frame under Regulation 17(1), cannot claim the benefit of Regulation 17(5) to have the impugned order quashed. As a matter of judicial discipline, this Court proceeds on the basis that all these time frames have been held to be mandatory. A careful perusal of Regulations 17 and 20 of CBLR 2018 and CBLR 2013 respectively bring into sharp focus that these time limits are sequential for proceedings and they certainly have cascading effect on one another. This principle comes out clearly from a circular issued by the 'Central Board for Excise and Customs' being Circular No.9/2010 dated 08.04.2010. In the instant case, this Court has already held that 90 days from the date of issuance of SCN is when the noticee submits reply within 30 days and in a case like this, when the noticee has not sent the statement of defence / reply to SCN beyond 30 days time frame, 90 days time frame in the regulation if at all can be computed only from the date of reply and if so computed in the instant case, it is within 90 days period prescribed under Regulation 20(5) of CBLR 2013 and Regulation 17(5) of CBLR 2018 - this court comes to a conclusion that it cannot be gainsaid by writ petitioner that there is violation of Regulation 17(5) of CBLR 2018 and have the impugned order set aside on that lone ground. Alternative remedy - HELD THAT:- It is open to writ petitioner to file an appeal under section 129A(1) of the Customs Act, 1962, to CESTAT against impugned order - If writ petitioner chooses to avail alternate remedy and file an appeal to CESTAT, it is open to writ petitioner to seek condonation of delay as well as exclusion of time spent in this writ petition in the light of section 14 of the Limitation Act and if writ petitioner chooses to do so, CESTAT shall decide such applications on its own merit. Petition disposed off. Issues Involved:1. Violation of sub-regulation (5) of Regulation 17 of CBLR 2018.2. Availability of an alternate remedy through appeal to CESTAT.Detailed Analysis:1. Violation of sub-regulation (5) of Regulation 17 of CBLR 2018:The petitioner, holding a Customs Brokers License (CBL), was issued a Show Cause Notice (SCN) alleging failure to comply with specific regulations under CBLR 2018 and CBLR 2013. The SCN, dated 14.09.2018, called for a defense statement and scheduled a personal hearing. The petitioner responded on 22.11.2018, beyond the 30-day limit stipulated in Regulation 17(1) of CBLR 2018. The Assistant Commissioner of Customs submitted the enquiry report on 21.02.2019, leading to an order on 23.05.2019 revoking the CBL and imposing penalties.The petitioner challenged this order on the grounds of non-compliance with the 90-day timeframe for submitting the enquiry report as per sub-regulation (5) of Regulation 17 of CBLR 2018. The court noted that while the petitioner argued that the regulations were mandatory, the respondent contended that the regulations were directory unless a consequence for non-compliance was specified, referencing the Salem Advocate Bar Association case.The court examined the regulations and concluded that the timeframes were sequential and had a cascading effect. Since the petitioner submitted their defense beyond the 30-day limit, the 90-day period for the enquiry report should be calculated from the date of the defense submission (22.11.2018). Thus, the report submitted on 21.02.2019 was within the permissible timeframe.2. Availability of an alternate remedy through appeal to CESTAT:The court acknowledged that an alternate remedy was available to the petitioner under Section 129A(1) of the Customs Act, 1962, by appealing to the Customs Excise and Service Tax Appellate Tribunal (CESTAT). The court emphasized that writ jurisdiction under Article 226 of the Constitution of India should be exercised with caution, especially in fiscal matters, and only in cases of jurisdictional error, violation of natural justice principles, or when the alternate remedy is ineffective or illusory.The court found that none of these exceptions applied in the present case. Hence, it directed the petitioner to pursue the alternate remedy of appeal before CESTAT. The court also allowed the petitioner to seek condonation of delay and exclusion of time spent in the writ petition under Section 14 of the Limitation Act, with CESTAT to decide such applications on merit.Conclusion:The court held that the impugned order was not vitiated by the violation of the 90-day timeframe under Regulation 17(5) of CBLR 2018 or Regulation 20(5) of CBLR 2013. The petitioner was directed to file an appeal with CESTAT, which was requested to expedite the disposal of the appeal within three months from the filing date. The writ petition was disposed of on these terms, with no costs awarded, and the connected miscellaneous petition was closed.