AMICUS AI
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
Are you a practicing lawyer?
Enhance your digital presence and reach by creating a Casemine profile.
Upload pleading to use the new AI search
Cites
Cited by
Citation Codes
Equivalent Citations
citation codes
Case Number
Attorney(S)
Judges
Smart Summary

Structured Summary of the Opinion

Factual and Procedural Background

The petitions are two writ petitions filed under Article 226 of the Constitution of India (W.P. Nos. 44345 & 44344 of 2016). The petitioner held a Customs House Agents (CHA) Licence. In or around December 2013 two importers (M/s. Brightway Network Imports and Exports, Vadapalani, Chennai and M/s. Bobby Enterprises, Ghaziabad) used the petitioner’s services to import consignments. The Bills of Entry declared the goods as "flower pot stands" though they were in fact electronic items; consignments were intercepted on intelligence.

An investigation followed. A show cause notice under Section 124 of the Customs Act, 1962 was issued dated 23-6-2011 for imposition of penalty on importers and the petitioner. Separately, on 15-12-2011 a show cause notice was issued to the petitioner under Regulation 22 of the Customs House Agents Licensing Regulations, 2004 (2004 Regulations) calling upon him to show cause why his CHA licence should not be revoked and his security deposit forfeited for alleged failures under Regulation 13(a), 13(d) and 13(o).

No reply was filed to the 15-12-2011 notice. An Inquiry Officer submitted an inquiry report on 25-2-2013; a copy was purportedly forwarded to the petitioner on 28-2-2013 with an invitation to make representations. The petitioner did not file a reply to the enquiry report and did not attend several scheduled hearings, attending only on 7-11-2014 when the proprietor and manager appeared and a letter dated 4-6-2011 was submitted.

The Commissioner of Customs (Imports) passed an order dated 9-2-2015 revoking the petitioner’s CHA licence and ordering forfeiture of the entire security deposit. The petitioner challenged the show cause notice dated 15-12-2011 (W.P. 44345 of 2016) and the revocation order dated 9-2-2015 (W.P. 44344 of 2016). Notice in the petitions was recorded as issued on 2-1-2017. Counter-affidavits were filed on behalf of the respondents and the petitioner filed an additional affidavit attempting to explain the delay in approaching the Court.

Legal Issues Presented

  1. Whether the show cause notice dated 15-12-2011, issued under Regulation 22 of the 2004 Regulations, was invalid because it was issued after the time-frame prescribed by Regulation 22 (the 90-day period) had expired, thereby depriving the Commissioner of jurisdiction to issue the notice.
  2. Whether the writ petitions should be dismissed on the ground of delay and laches given the time lapse between issuance of the show cause notice (15-12-2011) / revocation order (9-2-2015) and the filing of these petitions in 2016.

Arguments of the Parties

Petitioner's Arguments

  • The sole ground of attack was that the show cause notice dated 15-12-2011 could not have been validly issued because the time-frame provided in Regulation 22 (the 90-day period) had already expired when the notice was issued, and therefore the Commissioner had no jurisdiction to issue the show cause notice.
  • The petitioner relied on judgments including Impexnet Logistic v. Commissioner of Customs (General) and Overseas Air Cargo Services v. Commissioner of Customs (General), New Delhi (both referred to as (Del.) decisions) to support the contention on limitation/periodicity.

Respondents' Arguments

  • The respondents argued that the writ petitions should be dismissed on the grounds of delay and laches, pointing out that the show cause notice was dated 15-12-2011 and that the petitioner approached the Court after nearly six years; similarly, the revocation order dated 9-2-2015 was challenged only in 2016.
  • On being queried about limitation jurisprudence, counsel for the respondents fairly admitted that the view taken by this Court regarding limitation was against the respondents.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Impexnet Logistic v. Commissioner of Customs (General) (Del.) Held that the 90-day period provided for issuance of SCN for revocation of Customs Brokers' licence is sacrosanct / mandatory. Relied on by the petitioner; the court noted the Division Bench of the Delhi High Court in this case has held the 90-day period sacrosanct and treated it as supporting the mandatory nature of the limitation.
Overseas Air Cargo Services v. Commissioner of Customs (General), New Delhi (Del.) Also held that the 90-day period provided for issuance of SCN is sacrosanct / mandatory. Relied on by the petitioner; court noted the Division Bench in this case took a consistent view that the 90-day time-limit is mandatory.
M/s. Sowparnika Shipping Services v. The Commissioner of Customs, Chennai and Another (W.P. No. 37796 of 2016) (order dated 15-12-2016) Extracted observations emphasizing that the 90-day period in the Regulations is mandatory and that courts have consistently treated the time limit as obligatory. The court reproduced relevant observations from this order and relied upon its analysis showing a consistent judicial view that the 90-day limit is mandatory; used these observations to frame the applicable state of law.
Master Stroke (a learned single Judge of this Court) Ruled that the period of 90 days provided for issuance of an SCN is mandatory (the term "shall" is not directory). Cited within the extracted observations reproduced from Sowparnika; contributed to the court's understanding that the 90-day rule is mandatory.
A.M. Ahamed & Co. Addressed when the prescribed period should start; observed that Regulations do not define "offence report" and opined the period may commence from the date the Commissionerate gains knowledge of the offence. Quoted by the court (via the Sowparnika extraction) to show an alternative aspect of the law about when the 90-day period begins; used to illustrate that courts have considered the question of the commencement of the period.

Court's Reasoning and Analysis

The court first acknowledged the procedural posture: petitions filed under Article 226 challenging the show cause notice dated 15-12-2011 and the revocation order dated 9-2-2015. The court recognized that the petitioner had delayed approaching the Court, but identified the principal legal question as whether the Commissioner had jurisdiction to issue the show cause notice after the expiration of the 90-day period prescribed by Regulation 22 of the 2004 Regulations.

The court examined existing case-law and reproduced relevant observations from a recent order (M/s. Sowparnika Shipping Services v. Commissioner of Customs, order dated 15-12-2016). Those extracts emphasized a consistent judicial view that the 90-day time limit in the Regulations is mandatory (the use of "shall" cannot be treated as directory) and that courts across the board have taken a consistent position to that effect.

The court also noted jurisprudence on when the prescribed period begins to run: in A.M. Ahamed & Co. a learned Judge observed that because the Regulations do not define "offence report", the period may commence from the date the Commissionerate gains knowledge of the offence. The Division Bench decisions of the Delhi High Court in Impexnet Logistics and Overseas Air Cargo Services were cited as holding the 90-day period sacrosanct.

Applying the state of law as outlined in the cited authorities, the court held that the Commissioner of Customs (Imports) lacked jurisdiction to issue the show cause notice after the expiry of the 90-day period contemplated by Regulation 22. The court reasoned that this rule is mandatory, and, given the consistent view of courts, mandated the conclusion that the challenged proceedings were time-barred.

On the issue of the petitioner’s delay in approaching the Court, the court considered the petitioner’s explanation that the matter was being handled by his manager who had left his services and that this circumstance accounted for the delay in filing the writ petitions. The petitioner supported this explanation by affidavit, which the respondents did not rebut. The court accepted this explanation for the delay between the date of the revocation order and the filing of the writ petitions.

Synthesizing the law on limitation and the accepted explanation for delay, the court concluded that the petitioner was not disentitled from seeking relief and therefore allowed the writ petitions.

Holding and Implications

Holding: The court ALLOWED the writ petitions and QUASHED the show cause notice dated 15-12-2011 and the revocation order dated 9-2-2015. The connected pending applications were closed. There was to be no order as to costs.

Implications: The direct effect of the decision is that the impugned show cause notice and the order revoking the petitioner’s CHA licence and ordering forfeiture of the security deposit have been set aside as time-barred under the applicable Regulations. The opinion follows and applies existing precedent regarding the mandatory nature of the 90-day period under Regulation 22; the court did not indicate that it was laying down any new precedent beyond applying the settled view described in the cited authorities.


Note: This summary is prepared strictly from the content of the provided opinion and does not add or infer facts or holdings beyond what is contained in that text.

    Patriot Freight Logistics System v. Commissioner of Cus., Chennai

    [Order (Common)]. - These are two writ petitions filed under Article 226 of the Constitution of India.

    1.1 By virtue of W.P. 44345 of 2016, challenge is laid to the show cause notice dated 15-12-2011 issued to the petitioner under Regulation 22 of Customs House Agents Licensing Regulations, 2004 (in short, 2004 Regulations).

    1.2 Via, W.P. 44344 of 2016, challenge is laid to the order dated 9-2-2015, whereby, the petitioner’s licence has been revoked and the entire security deposit has been ordered to be forfeited.

    2. Notice in these petitions was issued on 2-1-2017. Since then, counter affidavits have been filed on behalf of the respondents. The petitioner filed an additional affidavit, wherein, an attempt has been made to explain, inter alia, the delay in moving the Court by way of the instant writ petitions.

    3. Briefly, the facts which obtain in the present writ petitions and are required to be noticed are as follows :

    The petitioner was granted a Customs House Agents (CHA) Licence by the Commissioner of Customs. It appears in December, 2013, two importers namely, M/s. Brightway Network Imports and Exports, Vadapalani, Chennai and M/s. Bobby Enterprises, Ghaziabad, had used the services of the petitioner for importing certain goods. However, the declaration made in the Bills of Entries was found to be incorrect. The declaration made therein was that the goods in issue were flower pot stands, whereas, they were in fact, electronic items. Consequently, based on intelligence, the consignments were intercepted.

    3.1 Consequently, an investigation was triggered in the matter. Upon conclusion of investigation, a show cause notice under Section 124 of the Customs Act, 1962 (in short, the Customs Act) was issued for imposition of penalty, both on the importers, as well as the petitioner herein. The said show cause notice was dated 23-6-2011.

    3.2 As a result of the aforesaid, on 15-12-2011, the Commissioner of Customs (Imports) issued a show cause notice to the petitioner under Regulation 22 of the 2004 Regulations. Concededly, no reply was filed to the show cause notice dated 15-12-2011. By virtue of this notice, the petitioner was called upon to show cause as to why his CHA Licence ought not to be revoked and the security deposit made over by him be not forfeited for failure to comply with Regulation 13(a), 13(d) and 13(o) of the 2004 Regulations.

    3.3 In pursuance of the show cause notice dated 15-12-2011, an Inquiry Officer was appointed who submitted his report on 25-2-2013. It is infact the stand of the respondents before me that a copy of the Enquiry Report was forwarded to the petitioner on 28-2-2013 with a request to make a representation, if any, qua the findings written by the Inquiry Officer.

    3.4 Concededly, no reply was filed by the petitioner to the findings contained in the Enquiry Report. Furthermore, it appears that despite several opportunities being given, the petitioner did not appear for a personal hearing except on 7-11-2014. The hearings fixed on 25-7-2014, 12-8-2014 and 27-8-2014 were not attended to by the petitioner. As per the stand of the respondents, on 7-11-2014, the petitioner i.e., Mr. Sahaya Edin Prabhu, Proprietor, along with his Manager, Mr. G. Achuthan, appeared before the Commissioner of Customs (Imports). At the said hearing, the petitioner submitted a letter dated 4-6-2011.

    4. The petitioner’s stand, apparently, advanced before the Commissioner of Customs (Imports) was that a decision be taken after taking into account the submissions made in the letter dated 4-6-2011. The first respondent/the Commissioner of Customs proceeded to pass an order thereafter, i.e., order dated 9-2-2015, by which, not only the petitioner’s licence was revoked, but also, the security deposit made over by him was forfeited. Aggrieved by the aforementioned show cause notice and the order of revocation, the petitioner, as indicated above, has moved this Court.

    5. The sole ground, on which, the petitioner has assailed the orders referred to above, namely, the show cause notice and the revocation order referred to above, is that, on the date when the show cause notice was issued, the same could not have been issued as the time frame provided in Regulation 22 had already expired. In other words, the stand of the petitioner before me is that the Commissioner of Customs (Imports)/first respondent had no jurisdiction to issue the show cause notice.

    6. For this purpose, learned counsel for the petitioner relied upon the following judgments :

    (i)  (Del.) titled : Impexnet Logistic v. Commissioner of Customs (General).
    (ii)  (Del.) titled : Overseas Air Cargo Services v. Commissioner of Customs (General), New Delhi.

    7. On the other hand, Ms. Hema Muralikrishnan, learned counsel for the respondents submitted that the writ petitions should be dismissed on the ground of delay and latches. It is the learned counsel’s contention that the show cause notice was issued as far back as on 15-12-2011 and that the petitioner has approached this Court after a period of nearly six years.

    8. Ms. Hema Muralikrishnan has further submitted that even the revocation order was issued as far back as on 9-2-2015 and the petitions have been filed only in 2016. On being queried, Ms. Hema Muralikrishnan has fairly submitted that the view taken by this Court with regard to limitation is squarely against the respondents.

    9. I have heard the learned counsels appearing for the parties and perused the record.

    10. No doubt, the petitioner has approached this Court, apparently, at his own leisure, the aspect which stares the respondent in the face is that after the expiry of the period of ninety days from the date of the offence report, as stipulated in Regulation 22 of the 2004 Regulations, the first respondent/the Commissioner of Customs (Imports) had no jurisdiction to issue a show cause notice.

    11. This aspect of the matter has been dealt with by this Court in several judgments including the order dated 15-12-2016 passed in W.P. No. 37796 of 2016, titled : M/s. Sowparnika Shipping Services v. The Commissioner of Customs, Chennai and Another. Relevant observations are extracted hereinafter for the sake of convenience.

    “14. I have heard the learned counsel for the parties and perused the records. According to me, the judgments cited before me by the learned counsel for the petitioner cover the issue raised in the present Writ Petition.
    15. To be noted, in Master Stroke, a learned single Judge of this Court has clearly ruled out that the period of 90 days provided for issuance of SCN is mandatory.
    16. The relevant observations made in that behalf by the learned single Judge, which are contained in paragraph 50 of the judgment are extracted below :
    “....50. It is also to be noted that every act of breach by the Broker would entitle the authorities to initiate proceedings from the date of knowledge of the offence. It is only if the time limit is strictly followed, swift action can be initiated against the Customs Brokers and the authorities can also be made accountable. The Regulations only contemplate initiation of proceeding by issuance of notice within 90 days. While, making out a prima facie case, the respondents ought to have, without any shadow of doubt, treated the word shall in Regulation 11 as mandatory and not directory. Therefore, when a time limit is prescribed in Regulations, which empowers action in Regulation 18 and procedure in Regulation 20(1), the use of the term shall cannot be termed as directory. It is pertinent to mention here that the CBLR, 2013 have replaced the CHA Regulations. The CHA Regulations did not have any time limit to complete the proceedings. Therefore, by a Circular 9/2010, dated 8-4-2010, the necessity to include a time limit for initiating action was addressed by the Board after field inspection and by a Notification dated 8-4-2010, amendments prescribing time period for initiating action and completing proceedings was made. The same was given effect by Notification dated 20-1-2014. Whereas, under the CBLR, 2013 having found the necessity to prescribe a period, the Central Board, the statutory authority had included the same in the Regulations itself, when they were brought into force. Therefore, when a time limit is prescribed in Regulations, which empowers action under Regulation 18 by following the procedure in Regulation 20(1), the use of the term shall cannot be termed as directory. Under such circumstances, the rule can only be termed as Mandatory.”
    17. In so far as, when, the prescribed period should start ticking, another learned single Judge of this Court, in A.M. Ahamed & Co. has made the following observations :
    “....17. Unfortunately, the Regulations do not define what an offence report is and the Regulations do not even state as to how an offence report is to be sent. The Regulations do not even use the expression “offence report” anywhere else other than Regulation 22(1). Even the grounds on which a licence can be revoked or suspended, mentioned in Regulation 20(1), do not include the definition of the expression offence or offence report. There are only three grounds on which a licence can be suspended or revoked under sub-regulation (1) of Regulation 20. Regulation 20(1) reads as follows :-
    “20. Suspension or revocation of licence. - (1) The Commissioner of Customs may, subject to the provisions of Regulation 22, revoke the licence of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part or whole of security, on any of the following grounds, namely :-
    (a)     failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under Regulation 10;
    (b)     failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else;
    (c)     any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or anywhere else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station……”
    18. A perusal of the observations made by in A.M. Ahamed & Co. case, is indicative of the fact, that the learned single Judge was of the view that, since, there is no definition of offence report in the Regulations, the period would commence from the date of knowledge gained by the Commissionerate.
    19. The Division Bench of the Delhi High Court, both in Impexnet Logistics and Overseas Air Cargo Services, have held that the period of 90 days, provided for issuance of SCN for revocation of Customs Brokers Licence is sacrosanct.
    20. Having regard to the consistent view of Courts across the Board, I am not inclined to take a contrary view.”
    (emphasis is mine)

    12. If the state of the law is as indicated above, the mere fact that the petitioner approached this Court not too early in the point of time would not disentitle him from claiming reliefs sought in the instant writ petitions. More so, as the petitioner, in my view, was at liberty to challenge either the issuance of show cause notice or, wait till the time a final order was passed. The final order of revocation was passed on 9-2-2015. Insofar as the delay between the date when the revocation order was passed and the writ petitions were presented, the delay has been sought to be explained by the petitioner by taking the stand that the matter was being handled by his Manager who had left his services and therefore, the petitioner was unable to approach the Court with due expedition. This stand is supported by an affidavit which has not been rebutted by the respondent. Therefore, the stand of the petitioner will have to be accepted, qua, the delay.

    13. Thus, having regard to the state of law, the writ petitions have to be allowed. Consequently, the show cause notice dated 15-12-2011 and the order dated 9-2-2015 are quashed. Resultantly, the connected pending applications are also closed. However, there shall be no order as to costs.

    Use AI to get other relevant cases.

    Comments

    Patriot Freight Logistics System v. Commissioner of Cus., Chennai
    (Feb 3, 2017)