TaxTMI 
TaxTMI 
2016 (3) TMI 609
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....Brokers Licensing Regulations, 2013, I prohibit M/s Daniel & Samuel Logistics Pvt Ltd., (PAN No.AADCD1437C) from working in any section of the Customs Commissionerate and Customs station under the jurisdiction of Chennai Customs Zone, with immediate effect. However, all documents already filed prior to this order will be allowed to be completed. 15. Since the Customs Broker Licence was issued to M/s Daniel & Samuel Logistics Pvt Ltd., by Tuticorin Commissionerate, the further course of action will be initiated by them under Customs Broker Licencing Regulation, 2013, as per the instructions contained in para (iii) 5.2 of Board's Circular No.09/2010 ' Customs dated 08.04.2010. 16. This order is issued without prejudice to any other action that may be taken against the Customs Broker and their employees / representative etc., under the provisions of the Customs Law or any other law for the time being in force in the Union of India." 2. The abovesaid order has been impugned on the ground inter alia that it is violative of principles of natural justice. After hearing the learned counsel appearing for both parties, and taking note of the decision of this Court in....
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....r was tested before the Writ Court, on the ground inter alia that it is violative of principles of natural justice, stating that it is without issuing a show-cause notice and holding an enquiry, the Writ Court relied on a decision of this Court reported in 2013 (288) ELT 497 (Madras) (cited supra) and found that the decision is squarely applicable to the case on hand. At this juncture, it is relevant to reproduce the decision considered by the Writ Court. 5. On consideration, I find that the impugned order cannot be sustained. The order of prohibition is a final order passed by the authority not vested any power to exercise of jurisdiction under Regulation 22. 6. It is now well-settled law that even administrative orders which affects the rights of a party can be passed only by following the principles of natural justice. That order under Regulation 21 was passed in violation of principles of natural justice on the face of it is arbitrary and thus not sustainable in law. 7. The Writ Petition accordingly is allowed. The impugned order is set aside. However, liberty is granted to the respondent to pass fresh order in accordance with law, after giving an opp....
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....'s Law Lexicon, 14th Edn., is a temporary stop or hanging up as it were of a right for a time, also a censure on ecclesiastical persons, during which they are forbidden to exercise their office or take the profits of their benefices. (ii) Suspension' means, "action of debarring or state of being debarred, especially, for a time, from a function or privilege; temporary deprivation of one's office or position, or again, state of being temporarily kept from doing or deprived of something. (iii) Suspension as per Black's Law Dictionary: 7th Edn. Pg.1460 means, (1) to interrupt; postpone; defer (2) to temporarily keep a person from performing a function, occupying an office, holding a job or exercising a right or privilege. (iv) As per Stroud's Judicial Dictionary, 'Suspension' or 'Suspense' is a temporal, ie., temporary, 'Stop of Mans' Right (Cowel). Suspension, as per Bauvier's Law Dictionary, Vol.II, means a temporary stop of right, of a law, and the like. As per the Ramanatha Iyer's Dictionary, suspension means temporary intervention or cession of something (as) office, work or labour. (v) The act of debarring for a time fr....
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....or reduction in rank. On a reading of the decision of the Supreme Court, it seems to me that in that judgement their Lordships did not intend to equate 'suspension' with 'reduction in rank'. The two ideas are distinct and are intended to apply to different sets of circumstances. I am therefore of opinion that the contention of the learned counsel that suspension is tantamount to reduction in rank is unacceptable. If that is so, there was no necessity for any opportunity being given to the petitioner, before he was suspended, to show cause why he should not be suspended." (ii) Explaining the nature of the order of suspension, as to whether it is administrative or quasi-judicial, and whether a government servant should be given an opportunity, before suspending him from service, the Hon'ble Supreme Court in Pratap Singh v. State of Punjab reported in AIR 1964 SC 72, held that it cannot be said suspension of a Government servant, without calling him to explain the charges first, was bad, as the proceedings to suspend him, were not of a quasi-judicial character. The order suspending a Government servant pending enquiry is an administrative order. What has been he....
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....n the ground that it was violative of clause (1) of Article 311 of the Constitution." (iv) The Hon'ble Division of Gujarat High Court in Vagadia Parambhai Bhurabhai v. T.J.Trivedi reported in 1987 (1) SLR 648, while dealing with the similar question, at Paragraph 6, held as follows: "The above observation makes it abundantly clear that the application of the rule of natural justice of being heard before any administrative order having civil consquences of is passed, cannot be insisted upon if the same is liakely to defeat the very object or purpose of interim suspension. While it cannot be disputed on the principle that the principle of natural justice must be extended to administrative actions involving civil consequences, it must be conceded that insistence on the application of the rule of natural justice, namely, affording a hearing before an order is passed, cannot be permitted if it is likely to result in defeating the administrative action required to be taken with promptitude, having regard to the circumstances of the case on hand. Inflexible and rigid application of the rule of audit alteram partem to R.5 of the rules would have the effect of setting at nau....
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....lear that there should be a subjective satisfaction of the said authority. It is the submission of the Learned Senior Panel Counsel that Regulation 23 of Customs Brokers Licensing Regulations, 2013, does not state that prior opportunity must be given. Therefore, the said authority can pass an order of prohibition. Regulation 23 is preceded by Regulations 18 to 22, which are as follows:- ''18. Revocation of licence or imposition of penalty.- The Commissioner of Customs may, subject to the provisions of regulation 20, revoke the licence of a Customs Broker and order for forfeiture of part or whole of security, or impose penalty not exceeding fifty thousand rupees on a Customs Broker on any of the following grounds, namely : (a) failure of to comply with any of the conditions of the bond executed by him under regulation 8; (b) failure to comply with any of the provisions of these regulations, within his jurisdiction or anywhere else; (c) committing any misconduct, whether within his jurisdiction or anywhere else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station; (d) a....
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....rounds which are not admitted by the Customs Broker. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs Broker, for the purpose of ascertaining the correct position. (4) The Customs Broker shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall prepare a report of the inquiry and after recording his findings thereon submit the report within a period of ninety days from the date of issue of a notic....
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....ich the Customs Broker is totally restrained from acting in his capacity, and whereas, in the case of prohibition, he is restrained to the limited extent from working in one or more sections of the Customs Station, if the Commissioner of Customs is satisfied that such Customs Broker has not fulfilled his obligations as laid down under Regulation 11, in relation to work in that section or sections. Regulation 23 does not even indicate a post decisional opportunity. But, reading of Regulation 21, indicates that a Customs Broker, who is aggrieved by any order of the Commissioner of Customs under the Regulations, may prefer an appeal, under Section 129 of the Act, to Customs, Excise and Service Tax Appellate Tribunal established under Sub Section 1 of Section 129 of the Act. Although it could be contended that an order under Regulation 23 can also be appealed to the Tribunal, the question is whether a Customs Broker can be prohibited from working in one of sections of the Customs Station, without any reasonable opportunity. As observed earlier, if the authority is satisfied that there are materials to restrain a Customs Broker from exercising his right under the Licence, he can straigh....
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....(6) SCC 321 - AIR 2005 SC 2090 - 2005 (3) SCR 81, it has been held as follows:- "Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame- work of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression 'civil consequences' encompasses infraction of not merely property or personal rights but of civil 'liberties, material deprivations, and non pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." (iv) In M/s. Sahara India (Firm), Lucknow vs Commissioner Of Income, reported in 2008 (14) SCC 151, the Hon'ble Supreme....
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....Sunitha Venkatram vs. Ms.Divya Rayapati, reported in 2015 (2) MLJ (Crl) 385, this Court held as follows:- ''194.Under the Constitutional Scheme, I am empowered to decide, a question of law, independently of what the other High Courts, have decided and for that matter, the decisions of the other High Courts, may have a persuasive value and they do not a binding precedent. It is true that there must be certain degree of certainty in the law, to be interpreted and applied to all the persons, to which, the Constitution of India, extends, but that principle, does not mean that a High Court is bound by the decision of another High Court, whether it is of the same strength or of a higher composition. 195. No doubt, Judicial Precedents, across the country should maintain uniformity, and that there should be harmony in deciding a point of law, to be followed, but that does not mean that a High Court cannot decide a question of law, on its own, but have to simply follow the decision, decided by another High Court. In a given case, when a Central law is interpreted, every High Court is empowered to independently consider, the question of law, dehors the decisions of ....