SRI RAJESWARI INTERNATIONAL Vs. COMMISSIONER OF CUSTOMS, CHENNAI

JUDGEMENT

(1.) Heard Dr. S. Krishnandh, learned counsel appearing for Mr. B. Satish Sundar, learned counsel for the petitioner and Mrs. Hema Muralikrishnan, learned Senior Panel Counsel appearing for the respondent.

(2.) The petitioner was issued a Customs Broker licence under the Customs House Agent Licence Regulation, 2004 (CHALR), has filed this Writ Petition for issuance of a Writ of Certiorarified Mandmaus, to quash the order-in-original, dated 11-6-2015, passed by the respondent, in and by which, the respondent in exercise of powers conferred under the provision of Regulation 20(7) of the Customs Broker Licence Regulations, 2013 (CBLR), revoked the licence granted to the petitioner and ordered forfeiture of the full amount of security deposit furnished by the petitioner.

(3.) The facts leading to the impugned order are that the Docks Intelligence Unit (DIU), Custom House, Chennai, detained a container at Chennai International Terminal on 20-3-2013, for detailed examination. Before opening the container, the seals affixed in the container were examined in the presence of two independent witnesses, Customs Broker, Licence Agents, Freight Forwarder and CFS Authority, however efforts taken by the department to contact the exporter was in vain, as he could not be traced and stated to be absconding at the relevant time. The DIU team found that the riverts of the seal lock of the container, where the seals were affixed, were found to be tampered. The container was opened and the cargo was examined in the presence of the two independent witnesses, Customs Broker, Licence Agents, etc., and it was found to contain 364 pieces of wooden logs of "Red Sanders", weighing 13720 kgs, whereas in the Shipping Bill, dated 4-3-2013, the cargo was declared as 16 pallets of "Refractory Bricks". The investigation proceeded further, statement was recorded from the managing partner of the petitioner and after completing the other formalities, the petitioner was called upon to show cause, by show cause notice dated 19-2-2014, as to why their licence should not be revoked and the security deposited by them should not be forfeited or penalty should not be imposed upon them under Regulation 18 of the CBLR, for the failure to comply with the provisions of the Regulations. An Inquiry Officer was appointed to inquire into the grounds, which were not admitted by the petitioner. The respondent would state that the petitioner did not appear for personal hearings offered to them by the Inquiry Officer on 17-10-2014, 27-10-2014 and 28-10-2014 and did not submit any oral or written submissions. Hence, the Inquiry Officer submitted his report concluding that the petitioner has not followed the KYC norms prescribed by the Central Board of Excise and Customs (C.B.E. and C.), vide Circular dated 8-4-2010, and failed to comply with the conditions of the bond executed by them under Regulation 10 [in terms of Regulation 20(a)]; failed to comply with the provisions of 13(a), 13(b), 13(d) and 13(e), in terms of Regulation 20(b) of CHALR and proved professional misconduct and indulged in breach of trust reposed on them. The copy of the inquiry report was forwarded to the petitioner on 8-1-2015, with a copy marked to the counsel for the petitioner. Thereupon, the counsel for the petitioner submitted a reply dated 21-1-2015, stating that the show cause notice or inquiry report has not been served on the petitioner and perusal of the department's communication dated 8-1-2015, showed that the report was sent to their client to the postal address at No. 181, Linghi Chetty Street, First Floor, Chennai - 600001, and it is presumed that even the show cause notice dated 19-2-2014, was also sent to the same address; the notices for personal hearings were never received by the petitioner. It was further mentioned that the petitioner vide their letter dated 10-2-2011, informed the department about their change of address along with a copy of rental agreement of their new address which was duly received and acknowledged. Thus, it was their submission that despite the receipt of the intimation of change of address of the business premises, all communications were sent to the old address and there was no way that the petitioner could have received the same and responded to the said communications. Therefore, it was submitted the inquiry culminating in a report, dated 31-12-2014, was an exercise in futility, as no notice was received by the petitioner. With these submissions, the petitioner's counsel requested that the petitioner be served a copy of the show cause notice and fresh proceedings initiated after giving the petitioner sufficient time to submit their reply to the show cause notice. After receipt of the letter from the petitioner's counsel, personal hearing was granted to the petitioner on 22-4-2015, by the respondent during which, the counsel reiterated the written submissions, dated 21-1-2015, and sought for setting aside the inquiry report requesting a fresh hearing in the matter and also informed that the proceedings are pending before the CESTAT with regard to the order extending the suspension of the petitioner's Customs Broker Licence. On these contentions, the respondent while adjudicating the show cause notice and passing the impugned order recorded that the copy of the order of suspension, dated 17-5-2013, under Regulation 20(2) of the CHALR, was addressed to the petitioner at No. 181, Linghi Chetty Street, First Floor, Chennai - 600001, which had been received by them in person on 20-5-2013 and also by post; the counsel for the petitioner had attended the post-decisional hearing on 27-5-2013 and filed written submissions on 29-5-2013 and there was no mention about the change of address at the time of personal hearing or in the written submissions. An order-in-original dated 14-6-2013, continuing the suspension was passed and the same was sent to the petitioner at the above referred address, which was received by them on 16-6-2013, again in person and aggrieved by such order, the petitioner has preferred an appeal to the CESTAT on 10-7-2013. In the appeal memorandum filed before the CESTAT, the address of the petitioner has been given as No. 181, Linghi Chetty Street, First Floor, Chennai - 600001 and the same is the address in the statement of facts, as well. While stating that it may be true that the petitioner had submitted intimation regarding the change of address on 10-2-2011, the discrepancies of not taking note of the same in the record of the department should have been brought to the notice of the respondent by the petitioner at the time of receiving the copies of the order of suspension, dated 17-5-2013, and order-in-original, dated 14-6-2013, or at least at the time of personal hearing before the respondent. It was further observed that though the change of address had been intimated on 10-2-2011, however, as late as 10-7-2013, the petitioner showed the address at No. 181, Linghi Chetty Street, First Floor, Chennai - 600001, as their address in the appeal before the CESTAT. Thus, the respondent concluded the petitioner is very well operating at the same premises and at such distant point of time, raising such contention, is not tenable, as they have received the order-in-original in person. Thus, the contention raised by the petitioner was rejected, as it appeared to be a delaying tactics. Thereupon, the respondent has discussed on the factual aspects and passed the impugned order revoking the petitioner's Customs Broker Licence.