INTERNATIONAL CARGO SERVICES Vs. UNION OF INDIA

JUDGEMENT

(1.) The petitioner impugns the order dated 5th January, 2005 passed by the Commissioner of Customs, New Delhi, inter alia on the following grounds:- 1.The order is violative of principles of natural justice as neither the petitioner was granted an opportunity of being heard prior to the passing of the order, nor it ex facie demonstrates application of mind by the competent authority; 2.The maxim audi alteram partem would have to be read into the provisions of Regulations 20 (2) of the Custom House Agents Licensing Regulations, 2004 (hereinafter referred to as 'the Regulations'), its violation vitiate the order; 3.The respondents having issued a show cause notice to the petitioner under Section 124 of The Customs Act, 1962 (hereinafter referred to as 'the Act'), there was no purpose of invoking the provisions of Regulation 20 (2) of the Act and furthermore the respondents have failed to adhere to the procedure prescribed in Regulation 22 of the said regulations; 4.In any case the order is an arbitrary exercise of power and is liable to be set aside.

(2.) Having noticed the contentions raised on behalf of the petitioner, we may now refer to the facts giving rise to the present petition. M/s. International Cargo Services is a proprietorship concern and is also a registered custom house clearing agent with the Customs Authorities since 1998 having license number 61 of 1998. Under the terms of the license, petitioner is rendering the services of clearing and presenting documents on behalf of the importers/exporters for clearing import and export of goods with the custom authorities. A temporary licence was issued to the petitioner in the year 1996 and in the year 1998 the petitioner was issued a regular license. It is the case of the petitioner that they have clear and unblemished record and they were never found to be contravening the provisions of the license or the law. Somewhere in October 2002, the petitioner had written to the custom authorities about the misuse of the license by some other person which was pending with the respondents. On 24th December, 2004 the petitioner received a show cause notice from the office of respondent no.2 [Commissioner of Customs (I & G)] that there was violation of the terms of the license and the drawback benefits derived by certain exporters including M/s. Ritambra International have violated the provisions of license as well as the other terms of license, and thus, the show cause notice was issued in terms of Section 124 of the Act, without prejudice to any other action that may be taken against the parties. Reply to the show cause notice was to be submitted by the petitioner within 30 days from the date of receipt of the said notice. According to the petitioner he had received the show cause notice on 29th December, 2004 and as such he could submit the reply thereto by 29th January, 2005. However, on 18th January, 2005, the petitioner received an order which was dated 'Nil', but during the course of arguments it was informed to the Court by the learned Counsel appearing for the respondents that the order is dated 5th January, 2005. In terms of this order the license of the petitioner was suspended with immediate effect and he was required to surrender all cards issued to the petitioner. It is this order which has been challenged in the present writ petition.

(3.) Upon notice the respondents have submitted that the present writ petition is not maintainable because the petitioner can challenge the impugned order under the provisions of the regulations and/or the Act before the competent authority. On merits, it is submitted that the show cause notice related to action as contemplated under Section 124 of the Act, which itself was issued without prejudice to the rights of the Department to take other actions permissible to them in law. Keeping in view the averments made in the order, there was complete justification on the part of the respondents in suspending the license of the petitioner. Thus, it is submitted that the writ petition is liable to be dismissed.