Jasjeet Singh Marwaha vs Union Of India (Uoi) And Ors.
2007 Latest Caselaw 2117 Del

JUDGMENT

S. Ravindra Bhat, J.

1. Issue notice. Mr. Pradeep Kumar Bakshi, Advocate accepts notice on behalf of the respondents. With the consent of the learned Counsel for the parties, the petition was heard finally.

2. The petitioner is aggrieved by a show cause notice issued under Regulation 22 of the Customs House Agent Licencing Regulations, 2004 (hereinafter referred to as 'the Regulations'); they were framed under Section 20 of the Customs Act, 1962. According to allegations of the Custom Authorities, the petitioner, a Customs House Agent, utilized a forged AEPC Certificate to clear the goods i.e. consignment of a customer namely M/s. El Dupont India Limited. Apparently, a show cause notice was issued to the consignee and the petitioner. During the course of the proceedings, their statements were recorded under Section 108 of the Customs Act. These included the statements of the present petitioner. On the strength of the materials, the Additional Commissioner(Adjudication) of Customs, levied a penalty of Rs. 5 lacs upon the petitioner by an Order dated 20.10.2006, hereinafter referred to as the Adjudicatory Order. The petitioner appealed under Section 128 of the Custom Act being Ref. No. IRG/220/06/1940 which is pending adjudication before Shri Rajiv Kumar, Commissioner (Appeal).

3. In the meanwhile, consequent upon the imposition of penalty, the respondents invoked their power under Section 21 and suspended the petitioner's Custom House Agent (CHA) license. Being aggrieved, petitioner preferred an Appeal to the CESTAT which set aside the suspension order and required the authorities to consider the matter afresh. After remand, the Customs Authorities reiterated their position and issued another suspension order on 17.4.2007. That has been appealed against. In this background on 18.7.2007, a show cause notice was issued asking the petitioner why the CHA license in his favor be not revoked, i.e. assailing the present case.

4. Learned Counsel submitted that the respondents did not apply their mind to the circumstances. The last bill of entry in question was filed in January, 2003. Yet the respondent chose to take action more than three years later. In the meanwhile, there were no complaints against the petitioner. Learned Counsel relied upon the fresh order made by the Custom Authorities suspending the license, dated 17.4.2007 and contended that this betrays an adverse mind set against the petitioner. It was also contended that the issuance of the impugned show cause notice is a ritual formality as the respondents have predetermined to revoke the license.

5. Counsel submits that the respondents have, after due consideration of all the factors, renewed the license on 2.1.2007 for a period of ten years. In these circumstances, they could not have formed a fresh opinion as there was no complaint other than the subject matter of the proceedings before the CESTAT. The action of the respondents is, therefore, arbitrary and illegal.

6. Learned Counsel for the respondent denied the allegations of the petitioner. It was contended that the power to issue a suspension order has not been questioned, in the present case. The respondents did not take any precipitate action without considering the merits. The Court should not feter their right to decide whether to revoke license issued to the petitioner.

7. The above facts would show that the instance in question occurred some times in December 2002 - January 2003. The respondents allege that the petitioner had used a forged Certificate and that according to them the consignee had not relied on such document. On the basis of its investigation, a show cause notice was issued which culminated in findings, resulting in imposition of penalty so far as the petitioner was concerned. No doubt, the respondent chose not to take any action under Regulation 22 to suspend the petitioner's license, when the adjudication proceeding was pending. Whatever be the circumstances, this Court cannot lose sight to the fact that the suspension order is not the subject matter of this petition. What is in question here is the show cause notice issued on 18.7.2007 proposing cancellation of the petitioner's license.

8. I am of the opinion that there is some substance in the argument made on behalf of the petitioner that there would be perhaps an inevitability about the result in the impugned show cause notice. The previous two proceedings which culminated in the issuance of the show cause notice; vis-a-vis suspension were premised undisputedly on the findings of the adjudicating authority. The correctness of those findings is yet to be determined in the Appeal preferred by the petitioner. In these circumstances, although the respondent has power to proceed and to take action, I am of the opinion that the matter could be redressed through appropriate directions, to secure the interest of both the parties.

10. In view of the above, the best course of action would be, in my opinion, to direct the respondents not to take any further action upon the impugned show cause notice awaiting the result by the Appeal pending before the Commissioner (Appeal) under Section 128. The said Commissioner shall, therefore, endeavor to decide the petitioner's Appeal against the adjudicatory order dated 20.12.2006 pending before him at the earliest and in any case within four months from today. The respondents shall, in the meanwhile, not proceed with the impugned show cause notice and make any final order. The continuation and resumption of the said proceedings shall be guided by the final order of the CESTAT.

11. It is open to the petitioner to seek early disposal of the Appeal against the order of the suspension pending before the Tribunal. If such an application is made, the Tribunal shall endeavor to hear the matter at the earliest.

12. The Registry shall communicate copy of the order directly to the Collector (Appeals) for appropriate action.

13. The writ petition and pending applications are disposed of in terms of the above directions. Order dusty.