Case Law Details
JKG associates Pvt. Ltd vs union of India & Ors (Calcutta High Court)
Petitioner challenges the impugned action imposing the aforesaid penalty on the ground that the same is not sustainable for the reason of non-compliance of the formalities under Regulation 17 by which respondent Commissioner of Customs was required to issue a notice in writing to the Customs Broker within a period of ninety days from the date of the alleged offence.
It is the case of the petitioner that the allegation of violation of Regulation 10(o) of the aforesaid regulation is totally baseless. It has been submitted by the petitioner that the action of imposing of penalty is in violation of basic principles of natural justice since, the action of imposing the penalty by the Commissioner of Customs is penal in nature and adverse to the interest of the petitioner. It is a well-settled principle of law that if any action by an authority against a person is adverse to his interest or penal in nature, that person must be given an opportunity of hearing before taking such action.
Considering the submissions of the parties and facts as appears from record and the judgement of the Hon’ble Supreme Court in the case of Uma Nath Pandey (supra), I am of the considered view that the impugned order of imposing of penalty being Annexure P4 to the writ petition is not sustainable in law and the same is accordingly set aside and the matter is remanded back to the respondent Customs Authority to pass a fresh order after giving an opportunity of hearing to the petitioner or its authorized representative and in the light of the observation made in this writ petition, within four weeks from the date of the communication of this order.
FULL TEXT OF THE JUDGMENT/ORDER OF CALCUTTA HIGH COURT
The Court: Heard learned Advocates appearing for the parties.
In this writ petition, petitioner has challenged the action of the Customs authority imposing the penalty of Rs.50,000/- upon the petitioner who is Customs Broker for the alleged violation of Regulation 10(o) of Customs Brokers Licensing Regulation, 2018 which was imposed by the Commissioner of Customs and which was communicated to the Assistant Commissioner of Customs by a letter dated 16th July, 2018 being Annexure P4 to the writ petition, but the order of the Commissioner of Customs imposing such penalty on 9th July, 2018 was neither served nor communicated to the petitioner.
Petitioner challenges the impugned action imposing the aforesaid penalty on the ground that the same is not sustainable for the reason of non-compliance of the formalities under Regulation 17 by which respondent Commissioner of Customs was required to issue a notice in writing to the Customs Broker within a period of ninety days from the date of the alleged offence.
It is the case of the petitioner that the allegation of violation of Regulation 10(o) of the aforesaid regulation is totally baseless. It has been submitted by the petitioner that the action of imposing of penalty is in violation of basic principles of natural justice since, the action of imposing the penalty by the Commissioner of Customs is penal in nature and adverse to the interest of the petitioner. It is a well-settled principle of law that if any action by an authority against a person is adverse to his interest or penal in nature, that person must be given an opportunity of hearing before taking such action.
On this proposition of law, petitioner has relied on a decision of the Hon’ble Supreme Court in the case of Uma Nath Pandey Vs. State of U.P. reported in 2009(237) E.L.T. 241 (S.C), paragraph Nos. 10,11 and 17 which are relevant are as follows:
“10. Principles of natural justice are those rules which have been laid down by the Courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.
11. What is meant by the term ‘principles of natural justice’ is not easy to determine. Lord Summer (then Hamilton, L.J.) in Ray v. Local Government Board [(1914) 1 KB 160 at p. 199: 83 LJKB 86] described the phrase as sadly lacking in precision. In General Council of Medical Education & Registration of U. K. v. Sanckman [1943 AC 627: (1948) 2 All ER 337], Lord Wright observed that it was not desirable to attempt ‘to force it into any procusteam bed’ and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in the controversy, and further that it should give ‘a full and fair opportunity’ to every party of being heard.
17. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is ‘nemo judex in causa sua’ or ‘nemo debet esse judex in propria causa sua’ as stated in (1605) 12 Co. Rep. 114 that is, ‘no man shall be a judge in his own causel. Coke used the form ‘aliquis non debet esse judex in propria causa quia non potest esse judex at pars’ (Co. Litt. 1418), that is, ‘no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party’. The form ‘nemo potest esse simul actor et judex’, that is, ‘no one can be at once suitor and judge’ is also at times used. The second rule is ‘audi alteram partem’, that is, ‘hear the other side’. At times and particularly in continental countries, the form ‘audietur at altera pars’ is used, meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audi alteram partem rule, namely ‘qui aliquid statuerit parte inaudita alteram actquam licet dixerit, haud acquum facerit’ that is, ‘he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right’ [See Bosewell’s case (1605) 6 Co. Rep. 48-b, 52-a] or in other words, as it is now expressed, ‘justice should not only be done but should manifestly be seen to be done’. Whenever an order is struck down as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated.”
Mr. Matiti, learned Advocate appearing for the respondents Custom Authority, opposes this writ petition by contending that the impugned action is not penal in nature and the aforesaid regulation does not require affording any opportunity of personal hearing to the petition to which I am not convinced.
Considering the submissions of the parties and facts as appears from record and the judgement of the Hon’ble Supreme Court in the case of Uma Nath Pandey (supra), I am of the considered view that the impugned order of imposing of penalty being Annexure P4 to the writ petition is not sustainable in law and the same is accordingly set aside and the matter is remanded back to the respondent Customs Authority to pass a fresh order after giving an opportunity of hearing to the petitioner or its authorized representative and in the light of the observation made in this writ petition, within four weeks from the date of the communication of this order.
With these observations and directions, this writ petition being WPO No. 483 of 2018 stands disposed of.
