M DUTTA AGENCY Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The writ petitioner No. 1 is a firm registered under the Indian Partnership Act, 1932. The writ petitioner No. 2 is a partner of the writ petitioner No. 1. The writ petitioners were Customs House Agent duly licensed under the provisions of Customs House Agents Licensing Regulation, 1984 (hereinafter referred to as 'the regulation'). By such regulation, they were empowered to act as agent for transaction of any business relating to the entry of import or export of goods at any customs house station. The writ petitioners have been carrying on business as a clearing agent since 1969. The writ petitioners obtained licence bearing No. M-22 under the said regulation. During the course of their business as agent relating to import and export of goods, they acted as agent for clearance of the goods imported by R.S.I. Engineering Pvt. Ltd. The said R.S.I. Engineering Pvt. Ltd. imported various consignments of [Polypropylene] (P.P.) and R.N.J. Export Pvt. Ltd. (hereinafter referred to as 'R.N.J.') imported various consignments of [Polystyrene] (P.S.) under advance licences issued by the Controller of Imports and Exports under Duty Entitlement Exemption Certificate. After clearing consignment, imported by R.S.I. Engineering Pvt. Ltd., the petitioners under instructions of the said R.S.I, kept the goods at the godown of the Central Warehousing Corporation and the goods were taken delivery and/or cleared by the importee R.S.I. who arranged for such delivery and/or clearance. In respect of the importation of 155 M.T. of P.P. by the R.S.I, under a bill of entry, the Authority initiated action against the said R.S.I. and their associates and implicated the writ petitioners in the said proceeding. The goods however, were cleared by the said R.N.J. export and the goods were taken delivery by R.N.J. from the docks of the Calcutta Port. The writ petitioners however, received a demand-cum-show cause notice dated 12th of August, 1994 from the Additional Collector of Customs (Preventive) under Section 112A of the Customs Act, 1962, in respect of the importation made by the R.S.I. under the Bill of Entry dated 18th January, 1994. In the said show cause notice, it was alleged that the writ petitioners had aided and abetted the said R.S.I. in violating the various provisions of DEEC scheme by allowing different parties to take delivery of the materials without any receipt/delivery challan and allowed one Chandranath Ghosh alias Chandan Ghosh, an employee of the writ petitioner No. 1 to sign on the challan of the writ petitioner No. 1. From the said show cause notice, it appears that the Additional Collector of Customs (Preventive) had issued summons to R.S.I. and their associates who had received raw materials covered by the said bill of entry. The Additional Collector of Customs (Preventive) came to an erroneous conclusion in the said show cause notice that the writ petitioners were responsible for delivery of the imported materials to different parties other than the importers and that supporting manufacturer endorsed DEEC book and had aided and abetted in violating the provisions of DEEC scheme under which raw materials were imported by R.S.I. On the basis of such erroneous conclusion, the Additional Collector of Customs (Preventive) had issued the show cause notice as to why penal action under Section 112(a) of the Customs Act, 1962 should not be taken against the writ petitioners. The writ petitioners also received another show cause notice dated 17th of August, 1994 issued under Section 124 of the Customs Act, 1962 by the Customs Authority with regard to seizure of 360 bags HDPE from the godown of the transporter known as Raipur Calcutta Road Carrier. Thereafter on or about 1st of November, 1994, the writ petitioners received a memo dated 1st of November, 1994 from the respondent No. 1 alleging that the writ petitioners had failed to discharge their responsibilities as clearing agent under Regulation 14 of the Regulation which amounted to gross misconduct and the respondent No. 1 suspended the writ petitioner No. 1 under Regulation 21(2) of the said regulation. Challenging the said order of suspension, the writ petitioner moved a writ petition in this Court. On the said writ application, a learned Judge of this Court had stayed the operation of the order of suspension passed by the Customs Authority in view of the fact that an order of suspension was passed by this Court, the Customs Authorities issued another notice dated 22nd March/1985 upon the writ petitioner to show cause as to why the licences of the writ petitioners issued by the Customs Authorities should not be revoked under Regulation 23 of the 1984 regulation. The validity of the licence of the writ petitioners was to expire on 2nd of December, 1995. For renewal of the said licence for a further period of 5 years the writ petitioners made an application before the Customs Authority, a copy of which has been annexed to the writ petition. When the writ petitioners had applied for renewal of licence, the respondents by their letter dated 13th December, 1995 wrote the petitioners to submit reply to the complaints of misconduct made against them for non-compliance of the obligations under Regulation 14 as given in the annexures enclosed to the said letter. The writ petitioners submitted their representation by their letter dated 22nd December, 1995,4th of January, 1996 and 7th of March, 1996. On or about 6th of May, 1996, the writ petitioners received the order dated 29th March, 1996 whereby the respondent No. 1 rejected the application for renewal of the licence of the writ petitioners. In the said order, the respondent No. 1 categorically stated that he was not adjudicating upon the allegations made in the show cause notice issued earlier by the Commissioner of Customs (Preventive) as also by the Commissioner of Customs. It is this order of the respondent No. 1 passed on 29th of March, 1996 is now under challenge in this writ application.

(2.) Before I proceed further, let me now first deal with the preliminary objection raised on behalf of the Customs Authority to the entertainability of the writ application at this stage in view of the availability of an alternative remedy to the writ petitioner by way of an appeal under the regulation. Mr. Banerjee, appearing for the Customs Authority raised such preliminary objection. According to Mr. Banerjee, the Tribunal is invested with the powers to hear appeals against a decision or order passed by the Collector of Customs as an adjudicating authority and according to Mr. Banerjee, since the present order being the order passed by the Additional Collector in the exercise of powers invested under the Act, he becomes the adjudicating authority by virtue of Section 129A(1)(a) of the Act, the appeal would lie to the Tribunal. Mr. Banerjee further contended that since the Customs House Agent Licensing Regulation, 1984 have been framed by way of replacement of Customs House Agent Licensing Regulation, 1965, where provisions did exist in Regulation 28 as regards the appeal against such order, and as the present regulation have been framed only thereafter and when the Government has thought it not necessary to insert provision regarding appeal under the present regulation though they very much existed in the earlier regulations, it provides a clear pointer that because of Clause 1A of Section 129, the appeal against any order of the Collector being entertainable by the Tribunal, it was not necessary to make any specific provision in the Regulation.

(3.) The submission of Mr. Banerjee was hotly contested by Mr. Saktinath Mukherjee, appearing on behalf of the writ petitioners. According, to Mr. Mukherjee, as there is no provision for filing an appeal against the order impugned in this writ application, no appeal against such an order is maintainable and, therefore, the Tribunal could not be the Authority competent to hear the appeal.