TaxTMI 
TaxTMI 
2021 (6) TMI 802
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....g a common order. 3. The writ petitioner is a Public Limited Company, has been favoured with Customs Broker's License issued by the respondent. The petitioners operate as Customs Brokers at the Port of Chennai, Kochi, Coimbatore, Tuticorin and Mangalore, by extension of their Customs Brokers Licence under intimation in Form C of the Custom Broker Licensing Regulations, 2013 [hereinafter referred to as 'Regulations']. The facts regarding the operation of the petitioner in the Ports mentioned above are not disputed by the respondents. Thus, those facts narrated deserves no further consideration and the issue raised in these writ petitions are that the issuance of order of interim suspension and the Show Cause Notice is well within the provisions of the Customs Broker Licensing Regulations or not. 4. The learned counsel for the petitioner made a submission that the initiation of action against the petitioner is beyond the time limit prescribed under the Regulation and therefore, the interim suspension as well as the Show Cause Notice issued after a lapse of 90 days is unsustainable and liable to be set aside. To substantiate the same, the learned counsel for the petition....
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....ment reported in (2004) 7 SCC 166, S.J.S. Busniess Enterprises (P) Ltd. v. State of Bihar, wherein, it has been held as follows:- "Assuming that the explanation given by the appellant that the suit had been filed by one of the Directors of the Company without the knowledge of the Director who almost simultaneously approached the High Court under Article 226 is unbelievable, the question still remains whether the filing of the suit can be said to be a fact material to the disposal of the writ petition on merits. We think not. The existence of an adequate or suitable alternative remedy available to a litigant is merely a factor which a Court entertaining an application under Article 226 will consider for exercising the discretion to issue a writ under Article 226. But the existence of such remedy does not impinge upon the jurisdiction of the High Court to deal with the matter itself if it is in a position to do so on the basis of the affidavits filed. If however a party has already availed of the alternative remedy while invoking the jurisdiction under Article 226 it would not be appropriate for the Court to entertain the writ petition. The Rule is based on public policy but the mo....
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....r of Customs, Tuticorin in CMA No. 730/2016 and CMP. No. 5921/2016 dated 13.10.2017, a Division Bench of this High Court held thus: '41. In view of the aforesaid judgments, in our opinion, the issue as to whether the limitation prescribed i.e. 90 days period under Regulation 22(1) of CHALR 2004, is mandatory or not, is no more res integra. 42. Once the limitation prescribed is mandatory, as has been declared by the Courts of law, it cannot be stated that, because of the other issues that is the merit of the case, this mandatory requirement of the limitation can be ignored. 43. It is not the case of the 1st respondent that the 90 days limitation contemplated under Regulation 22(1), is directory. It is also not the case of the 1st respondent that the show cause notice was issued within the limitation period of 90 days from the date of offence report. 44. Since the offence report was dated 22.09.2010 and the show cause notice, admittedly, was issued only on 18.11.2011, there can be no doubt that the said show cause notice was issued well beyond the period of limitation of 90 days. 45. Whatever be the claim and counter claim on the merits, in this appeal can, in our view, the....
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....ond the period of limitation as contemplated and therefore, the facts are relevant for the purpose of deciding these writ petitions. The judgment cited by the petitioners are not applicable with reference to the facts and circumstances of these writ petitions. 10. In order to substantiate the said contentions, the learned Senior Panel counsel solicited the attention of this Court with reference to the summons issued by the Superintendent of Customs, Customs House, New Harbour Estate, Tuticorin, in proceedings dated 28.04.2015. The said Summon was issued under Section 108 of the Customs Act, 1962. It is contended that the petitioner is operating in various Ports, but the License Issuing Authority is the Commissioner of Customs, Chennai. Therefore, the Licensing Authority is competent to issue an order of interim suspension, show cause notice and proceed with the enquiry by following the regulations. In the present case, the initial summon was issued by the Superintendent of Customs at Tuticorin and the said proceedings were not communicated to the License Issuing Authority as it is not necessary to do so. In view of the fact that the offence was committed in Tuticorin Port, the com....
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....itiation of action for revocation of license by following the procedures contemplated under the Customs Brokers Licensing Regulations. In the present case, the show cause notice issued on 16.09.2015 and the order in original, imposing penalty issued on 22.03.2016, and therefore, the license issuing authority was nothing to do with that proceedings. Only when the penalty imposed was communicated to the License Issuing Authority at Chennai, they are empowered to institute action under the provisions of the Customs Brokers Licensing Regulations. 16. In the present case, admittedly, the interim order of suspension was issued on 08.08.2016 under Regulation 19. Immediately, the petitioner approached the Hon'ble High Court by filing W.P.No.29141 of 2016 and an interim order was granted and pursuant to the interim order, he is continuing the operations. During the pendency of the said writ petition, the competent authority issued show cause notice in proceedings dated 28.09.2016 and challenging the said show cause notice, subsequent writ petition was filed in W.P.No.38198 of 2016. 17. Carefully considering the relevant dates and the receipt of offence report by the first respondent /....
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....of receipt of the offence report. Consequently, the period of 90 days should commence only from that date. If so calculated, the impugned proceedings have obviously been initiated beyond the period of 90 days." 20. Perusal of the findings in the above judgment, it is unambiguous that there is no definition for an offence report. Thus, in the present case, the order of punishment by the competent authorities at Tuticorin Port, which was communicated through intimation letter to the License Issuing Authority is to be construed as an offence report for the purpose of initiation of action under the Regulations. It is needless to state that unless an offence report is served to the License Issuing Authority, it may not be possible for initiation of further action. As rightly pointed out by the learned Senior Panel counsel that the License Issuing Authority may not have knowledge about each and every actions initiated by the competent authorities of various Ports. The petitioner is having operations in number of Ports across the country. Therefore, the communication of offence report by the authorities of a particular Port to the License Issuing Authority is an important factor for the ....