TaxTMI 
TaxTMI 
2016 (7) TMI 42
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.....H.A. Order No. 01/2013, dated 04.04.2013, invoking provisions of Regulation 20 and 22 of the CHALR, the petitioner's license was suspended by the Commissioner, Customs (Headquarters), Patna. The petitioner has challenged the said order of suspension by filing CWJC No. 19535 of 2014. The Customs House Agent Licensing Regulations, 2004 (CHALR), came to be superseded with issuance of notification, dated 21.06.2013, and framing of "Customs Broker Licensing Regulations, 2013" (CBLR). The said CBLR, however, have saved all things done or omitted to have done before such supersessions. 4. During the pendency of the said writ application, a show cause notice was served on the petitioner through letter, dated 05.03.2015, issued under the signature of the Commissioner of Customs (P), Patna, which contains imputation of misconduct in respect of which an enquiry was proposed to be conducted. Along with the said show cause notice, the grounds of imputation, articles of charges and list of documents, by which the articles of charges were proposed to be sustained, were annexed. The petitioner was asked to submit his written statement of defence within 30 days from the date of receipt of the s....
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....t to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of section 129 of the Act." 9. Ms. Nirvikar has submitted that there is no exceptional circumstance for this Court to entertain this writ application, despite there being statutory remedy available to the petitioner. She has, accordingly, submitted that this writ application deserves to be dismissed at the very threshold. She has placed reliance, in this regard, on a Supreme Court's decision, in the case of Star Paper Mills Limited v. State of U.P. and Others , reported in 2006 (10) SCC 201. 10. Mr. D. V. Pathy, learned Counsel appearing on behalf of the petitioner, responding to the preliminary objection, has submitted that the rule of non-maintainability of writ petition, under Article 226 of the Constitution of India, is a rule of discretion and not of compulsion. He has submitted that in similar circumstance, other Courts have interfered with the action of the adjudicating authorities. Special reference has been made in this regard to the Supreme Court's decision, in the case of Hotel Ashoka v. Assistant Commissioner of Commercial Taxes, reported in 2012 (276) E.L.T. 433 ....
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....egular money. He further said that said Mehmood Patni had given him a sum of Rs. 30,000/- in two instalments and when he was suspicious about the money which said Mehmood Patni was giving, Mehmood Patni made him to understand that he would not put him in trouble. He also disclosed that since he (Mehmood Patni) was not paying him money, he had taken back the IEC from Mehmood Patni and, thereafter, he allowed the goods to be imported against his IEC, which were not his goods. 14. Sheikh Khursheed, who was described as Executive Director of the petitioner company, was also summoned. He said in his statement under Section 108 of the Customs Act that he had received the documents of M/s Regent Enterprises through one of his friends, Sahnawaz Choudhary, prior to which he had not handled any consignment of M/s Regent Enterprises. Sheikh Khursheed is said to have enquired about the importer from Sahnawaz, who had told him that the importer would be introduced to him within two days and, thereafter, he filed the Bill of Entry and paid duty and thereafter he proceeded to clear the goods. In the docks, the Officer had directed him to appear before Central Investigation Unit (CIU). It was, ....
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....st six employees on salary among whom two persons were G-card holder and three persons were H-card holder. That it is further stated that one Shaikh Khursheed was a G-card holder employee of petitioner, at the relevant time and subsequent he has resigned from his service since 30th January 2013 on account of illness of his wife." (Emphasis is supplied) 18. The purpose of making statement in paragraph 5 of the writ application, as noted above, is, evidently, an attempt to convince this Court that Sheikh Khursheed was merely G-card holder employee of the petitioner-company at the relevant point of time and was not the Executive Director of the petitioner-company. 19. In order to make out a case that said Sheikh Khursheed had nothing to do with the company after 30.01.2013, statement has been made that he had resigned his job with the petitioner-company on 30.01.2013 on account of illness of his wife. There is no such statement in the earlier writ application filed by the petitioner, i.e., CWJC No. 19535 of 2014. 20. A confiscation proceeding was initiated under Section 111 of the Customs Act, which finally culminated with an adjudication order, dated 03.12.2014, by the Joint....
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....he said statement having been made in paragraph 5 of the writ application, but in our view, the statement is palpably false which has been deliberately made to mislead this Court in a proceeding under Article 226 of the Constitution of India. The conduct of the petitioner is reprehensible. 25. Mr. D. V. Pathy, learned Counsel appearing on behalf of the petitioner has submitted that in the light of the said order, dated 30.09.2015, passed by the Commissioner of Customs, as noted above, nothing remains to be decided inasmuch as there is clear-cut observations that the appellant before him had held a bona fide belief with regard to the verification of import documents and were not concerned with the mis-declaration and under-valuation and accordingly filed the Bill of Entry on the basis of the said documents for the purpose of assessment. Much emphasis has been laid on paragraph 8 of the said order, dated 30.09.2015, which is being reproduced herein below:- "As a result, I find that on facts that the Appellants had held a bona fide belief with regard to the verification of the import documents and were not concerned with the mis-declaration and undervaluation and according....
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....art of an Import Export Code Number holder. Learned counsel for the respondents categorically made a statement that he is not able to place any such prohibition in law except Section 7 of the Foreign Trade (Development and Regulation) Act, 1992, which reads as follows :- 7. Importer-exporter Code Number. - No person shall make any import or export except under an Importer-exporter Code Number granted, by the Director General or the officer authorised by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General". The expression "import" occurring in the said section means bringing into India of goods as defined under Section2(e). There is nothing in the law which requires an importer to be either the consumer or even the buyer of the goods also Even otherwise, we are of the opinion that it is a matter of common sense that no importer would consume all the materials imported. Necessarily, the goods imported are meant for sale to the consumer, in which case, if an importer, who enjoys the facility of I.E. Code imports certain goods in the normal course of business on the strength of a contract entered by su....
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.... in the case of Proprietor, Carmel Exports and Imports (supra), that nothing was brought to the notice of the Court except Section 7 of the Foreign Trade (Development and Regulations) Act, 1992. The Kerala High Court held that Section 7 of the said Act prescribes that no person shall make any import or export except under Importer-Exporter Code Number, granted, by the Director General or the Officer authorized by the Director General in this behalf, in accordance with the procedure specified in this behalf by the Director General. Foreign Trade (Regulation) Rules, 1993, issued vide Notification No. GSR 791(E), dated 30.12.1993, published in the Gazette of India, Extra-Ordinary, has been brought to our notice by learned Counsel appearing for the respondents-Union of India. The said Rules have been framed in exercise of power under Section 19 of the Foreign Trade (Development and Regulation) Act, 1992. Section 2 (c) of the said Rules defines the term 'Importer or Exporter'. as follows: "2 (c) "importer" or "exporter" means a person who imports or exports goods and holds a valid Importer-exporter Code Number granted under section 7." (Emphasis is added) 30. Evidently, thus....
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....eign Trade (Regulation) Rules, 1993. It is the legislative intent that only one Importer-Exporter Code is allowed against one Permanent Account Number (PAN) and no person could import or export without IEC. If the actual importer or exporter is not having his own IEC, he could be able to circumvent the obligation imposed under Customs Act or under any other law, for the time being in force. 32. These provisions were apparently not brought to the notice of the Division Bench of the Kerala High Court, in the case of Proprietor, Carmel Exports and Imports (supra).We, respectfully, disagree with the view taken by the Division Bench of the Kerala High Court, in the case of Proprietor, Carmel Exports and Imports (supra). 33. As regards the role and responsibility of a CHA/Customs Broker in such clearance, Regulation 11 (n) of CBLR clearly provides that Customs Broker shall verify the antecedent, correctness of IEC, identity of his client and functioning of his client at the given address by using reliable independent authentic documents/data/information. Identical provision was there under CHALR under Regulation 13 (o) of the CHALR. Thus, if a Customs Broker facilitates the filing/....
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....nt Commissioner of Customs, as the case may be, a written authority in this behalf and give "prompt notice in writing if such authorization is modified or withdrawn". It is not the case of the petitioner that after said Sheikh Khursheed severed his relationship with the petitioner-company, it informed the concerned Deputy Commissioner of Customs or Assistant Commissioner of Customs withdrawing authorization given by it to said Sheikh Khursheed. Clause (9) of Regulation 17 of Customs Broker Licensing Regulations, 2013, casts obligation on the Customs Broker to exercise such supervision as may be necessary to ensure proper conduct of his employees in the transaction of business and he shall be held responsible for all acts or omissions of his employees during their employment. 36. In a proceeding under Article 226 of the Constitution of India, this Court is required to evaluate the correctness of the decision making process and not the decision itself. Findings of fact arrived at by the statutory competent authority should normally be not gone into in a proceeding under Article 226 of the Constitution of India unless the same are perverse, without evidence or contrary to evidence.....