2023 (1) TMI 695 - HC - Customs

Court grants interim order staying Customs Broker License revocation pending Final Hearing.

Shaikh And Pandit Agencies Private Limited Versus Principal Commissioner Of Customs (Airport And Administration), Kolkata

The Court granted an interim order staying the revocation of the petitioner's Customs Broker License until a specified date, finding a prima facie case in ... Revocation of petitioner’s Customs Broker License - Period of limitation - whether time prescribed under the said Regulation for completion of the proceedings and passing of the final order within 90 days from the date of receipt of inquiry report is directory or mandatory - jurisdiction of the authority under the customs and Central Excise Duty Drawback Rules, 2017 relating to Duty Drawback on export transactions - ELD THAT:- Petitioner submits that adjudicating authority has usurped the jurisdiction of the authority under the customs and Central Excise Duty Drawback Rules, 2017 relating to Duty Drawback on export transactions - Such findings have been noted in the disagreement note and subsequently in the impugned order relating to Bank Realization Certificate (BRC), a certificate issued by a Bank to an exporter certifying realization of export proceeds. The Inquiry Officer in his Inquiry Report under Regulation 17(5) of the said regulation has specifically found that the allegations of violation of Regulation 10(m), (n) and (q) under CBLR, 2018 against the petitioner as “not proved” except allegation under Regulation 10(d) was partially proved. It also appears from record that the order of suspension of petitioner’s license though it was set aside by the order of the Tribunal on 19th August, 2022 but before such order was passed by the Tribunal the respondent authority passed the impugned order of revocation of petitioner’s license. The issues involved in this Writ Petition is a pure question of law with regard to interpretation of Regulation 17(7) of the CBLR, 2018 and as to whether time prescribed under the said Regulation for completion of the proceedings and passing of the final order within 90 days from the date of receipt of inquiry report is directory or mandatory and this Writ Petition on this legal issue should be heard on affidavits by the respondents. The imagined order of revocation of petitioner’s license dated 11th July, 2022 shall remain stayed till 30th April, 2023 or until further order, whichever is earlier. Issues involved:Challenge to revocation of Customs Broker License under Regulation 17(7) of CBLR, 2018 based on alleged violations of Regulations 10(d), (m), (n), and (q) - Interpretation of whether the timeline for passing the order under Regulation 17(7) is mandatory or directory.Analysis:The petitioner challenged the revocation of their Customs Broker License under Regulation 17(7) of the Customs Brokers Licensing Regulations, 2018 (CBLR, 2018) for alleged violations of Regulations 10(d), (m), (n), and (q). The impugned order was issued on 11th July, 2022, beyond the 90-day timeline prescribed under Regulation 17(7) of CBLR, 2018. The petitioner argued that the timeline is mandatory, citing a judgment of the Bombay High Court. However, the respondents contended that the timeline is directory, relying on a judgment of the Calcutta High Court in a different case. The petitioner further highlighted a subsequent judgment of the Delhi High Court, which held the timelines under Regulation 17 to be mandatory. The petitioner emphasized the need for justification in case of delay, which was not provided in the impugned order.The petitioner also argued that none of the grounds provided under Regulations 10(d), (m), (n), and (q) applied to their case, as confirmed by the Inquiry Officer's report. The petitioner asserted that the exporters in question still existed, as evidenced by statutory records. Additionally, the petitioner raised concerns regarding the adjudicating authority's jurisdiction over matters related to Duty Drawback on export transactions, which were not relevant to the license revocation proceedings.The Court acknowledged the legal issue of whether the timeline under Regulation 17(7) is mandatory or directory as a pure question of law. Considering the Inquiry Officer's findings and the Delhi High Court's judgment, the Court found a prima facie case in favor of the petitioner. An interim order was granted to stay the revocation of the petitioner's license until a specified date. The Court directed the respondents to file an affidavit-in-opposition, with the petitioner given the opportunity to respond. The matter was listed for 'Final Hearing' in the monthly list of March, 2023.