Case Law Details

Case Name : M/s. Nepa Agency Co. Pvt. Ltd & Anr Vs Union of India (Calcutta High Court)
Appeal Number : WP 205 of 2015
Date of Judgement/Order : 13/05/2015
Related Assessment Year :
Courts : All High Courts (3993) Calcutta High Court (156)

 Brief of the Case

In the case of  M/s. Nepa Agency Co. Pvt. Ltd & Anr v Union of India, Hon’ble Calcutta High Court held that whenever in a statute a remedy is provided or an alternative remedy is there, then there is no need to entertain the Writ Petitions.

 Facts of the Case

The petitioner is a Customs House Agent carrying on business as clearing and forwarding agent. There was a seizure of a case of cigarettes which was being attempted to be smuggled into India by way of concealment inside a container declared to be containing dining sets through the Calcutta Port. The estimated value of the goods was Rs. 4.35 crores. During preliminary investigation it was found that the declared Customs House Agent namely the petitioner no. 1 did not actually act as the agent but allowed some unauthorised persons to use its licence and name for clearance of the subject consignment. Regarding this an enquiry was conducted against the petitioner and license was suspended from 11th September, 2013. Due to this action the petitioner filed Writ before Hon’ble High Court.

Contentions of the Petitioner

The ld. Counsel for the petitioners contended that the statements of one Manoj Baid were relied upon by the department but Mr. Baid was not offered for cross-examination by the representative of the petitioner which results into a blatant violation of principles of natural justice. Then, no opportunity was given to the petitioner company to make submission on merits including dealing with statements recorded during examination of witnesses. Also, there was a violation of regulation 20 of the Customs Brokers Licensing Regulations 2013.

It was submitted that the offence report was received by the respondent on 11th July, 2013 as would appear from the order of suspension of licence dated 25th July, 2013. However, the show cause notice was issued on 11th February, 2014 that is much beyond 90 days from the date of receipt of offence report. Hence, the show cause notice and all proceedings pursuant thereto are bad in law. Further, the ld. Counsel relied on decision of the Madras High Court in the case of A.M. Ahamed & Co.-vs.- Commissioner of Customs (Imports), Chennai reported in 2014 (309) ELT 433 where the period of 90 days specified in regulation 20 is mandatory and not directory and any proceedings initiated by way of issuance of notice beyond the period of 90 days from the date of receipt of offence report will stand vitiated.

 Contentions of the Respondent

The ld. Counsel for the Respondent submitted that Mr. Manoj Baid was duly given notice to appear in the proceeding but he failed to turn up and licence had been revoked earlier by the customs authorities. Then, he submitted that the proceedings were conducted by rigorously following the principles of natural justice and the period of 90 days mentioned in regulation 20 of the CBLR, 2013 is only directory and issuance of notice beyond the period of 90 days from the date of receipt of offence report does not render the proceedings bad.

The main contention which was mentioned by the Ld. Counsel was of availability of an alternative remedy. He referred regulation 21 of the CBLR 2013 which provides an aggrieved Customs Broker with an alternative remedy and therefore, the writ application should not be entertained. The Reliance was made on a decision of the Hon’ble Supreme Court in the case of Union of India-vs.-Guwahati Carbon Ltd. 2012 (278) ELT 26 where the Hon’ble Supreme Court observed that when a revenue statute provides for a person aggrieved by an assessment thereunder, a particular remedy to be sought in a particular forum, in a particular way, it must be sought in that forum and in that manner and all the other forums and modes of seeking remedy are excluded.

Decision of Hon’ble High Court

The Hon’ble High Court observed that the power under Article 226 of the Constitution of India is an extraordinary power and should be exercised by the High Courts only in those cases where the statutory authority has not acted in accordance with the provisions of the enactment in question.

The Hon’ble High Court relied on Titaghur Paper Mills Co. Ltd.-vs.-State of Orissa reported in (1983) 2 SCC 433, where it was held that where an Act provides for a complete machinery to challenge an order of assessment, the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Article 226 of the Constitution. Where right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute must be availed of.

Further, it was held that the Customs law is a complete code by itself. The Customs Act and the rules and bye-laws framed thereunder constitute a comprehensive and exhaustive code. The impugned order in the instant case has been passed by the Commissioner of Customs in exercise of his power under the Customs Brokers Licensing Regulations, 2013 which are framed under Article 146 (2) of the Customs Act, 1962. Therefore, in view of existence of the aforesaid alternative remedy, there is no need to exercise its extraordinary power under Article 226 of the Constitution of India. Accordingly, the writ application was dismissed.

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