Richmark Shipping & Logistics Pvt. Ltd Vs Commissioner of Customs (High Court Andhra Pradesh)
Andhra Pradesh High Court held that order for continuing the suspension of Customs Broker Licence without affording adequate opportunity of being heard is against the principles of natural justice. Writ disposed off with direction to submit written explanation within specified time.
Facts- Petitioner company is a Customs Broker. Petitioner company contacted NOOR AL SHAWAL GENERAL TRADING LLC, an exporter of dried dates, and on terms of the trade, commenced the process for import of 56,000 Kg. of dried dates by issuing a purchase order, vide Invoice No.RM-22-23-001, dated 02.01.2023. Next, the exporter issued a Commercial Invoice-cum-Packing List No.TD2301011, dated 23.01.2023. On complying the statutory requirements, the exporter exported the goods on 05.02.2023 through Globe Opus Shipping Line UK Ltd.
Petitioner being Customs Broker filed a Bill of Entry declaring the cargo as Dried Dates and the import value as Rs. 16.37 lakhs. However, on examination, it was found that the cargo contained both Areca Nuts and Dried Dates. Believing that the petitioner mis-declared both the value and goods, the Customs Authorities seized the goods.
Commissioner of Customs issued a suspension order suspending the Customs Broker Licence of the petitioner under Regulation 16 (1) of the Customs Broker Licencing Regulations, 2018 (for short “CBLR”) for non-fulfilment of Regulations 10 (d) and 10 (e).
Notably, the Managing Director of the petitioner company was released on bail, but the 1st respondent issued the impugned order arbitrarily without affording any hearing and it falls against the principles of natural justice. Hence, Writ Petition.
Conclusion- Held that the Managing Director of the petitioner company was in judicial remand. Though repeated requests were made by the petitioner company, their request was rejected on the ground that the legal time frame fixed under the CBLR, 2018 would lapse. The Managing Director of the company could not have any opportunity to submit his explanation to the notice issued by the authorities and while he was in judicial custody, the impugned order was passed. We are of the view that it is nothing but gross violation of principles of natural justice. It is a settled principle of law that adequate opportunity of being heard i.e., “audi alteram partem” forms a cornerstone in the doctrine of principles of natural justice. The opportunity must be real, reasonable, and effective and not a mere empty formality as laid down by the Hon’ble Supreme Court in Maneka Gandhi v. Union of India. Limitation of time cannot come in the way of giving a real and reasonable opportunity to the affected party for an effective hearing.
FULL TEXT OF THE JUDGMENT/ORDER OF ANDHRA PRADESH HIGH COURT
The writ petition is filed under Article 226 of the Constitution of India seeking the following relief:
“…to issue a Writ or Order more in the nature of Mandamus declaring the impugned orders dated 24.03.2023 and 11.04.2023 issued by the respondent is illegal, arbitrary, capricious and in violation of Regulation 16 of CBIR 2018 and Articles 14, 19 and 21 of the Constitution of India and consequently to quash the impugned orders dated 24.03.2023 and 11.04.2023 issued by the respondent….”
2. Petitioner’s case in a nutshell
2.1. Petitioner company is a Customs Broker with Licence No.02/2011, which assists importers in Customs clearance of imports and exports, engages in trading of various goods and, imports goods from other countries for sale in India. All activities of the Company are looked after by the Managing Director and no other Directors are conversant with its day-to-day affairs.
2.2. Petitioner company contacted NOOR AL SHAWAL GENERAL TRADING LLC, an exporter of dried dates, and on terms of the trade, commenced the process for import of 56,000 Kg. of dried dates by issuing a purchase order, vide Invoice No.RM-22-23-001, dated 02.01.2023. Next, the exporter issued a Commercial Invoice-cum-Packing List No.TD2301011, dated 23.01.2023. On complying the statutory requirements, the exporter exported the goods on 05.02.2023 through Globe Opus Shipping Line UK Ltd.
2.3. Petitioner being Customs Broker filed a Bill of Entry No.5008577 dated 11.03.2023 declaring the cargo as Dried Dates and the import value as Rs. 16.37 lakhs. However, on examination by the Customs on 17.03.2023, it was found that the cargo contained both Areca Nuts and Dried Dates. Believing that the petitioner mis-declared both the value and goods, the Customs Authorities, Visakhapatnam seized the goods, vide Memo F.No.S22/04/2023-SIIB, dated 18.03.3023.
2.4. On the very next day i.e., 19.03.2023, the Managing Director of the petitioner company was summoned by the Custom Authority and arrested in terms of Section 104 of the Customs Act, 1962 and was subsequently remanded to judicial custody. The Commissioner of Customs issued a suspension order suspending the Customs Broker Licence of the petitioner under Regulation 16 (1) of the Customs Broker Licencing Regulations, 2018 (for short “CBLR”) for non-fulfilment of Regulations 10 (d) and 10 (e).
2.5. Vide the suspension order, a personal hearing was fixed on 04.04.2023 at 11:30 under Regulation 16 (2) of CBLR, 2018 and any written representation should reach before the date of hearing. Petitioner made several representations vide letters dated 05.04.2023, 06.04.2023, and 10.04.2023 requesting Commissioner of Customs to postpone the date of personal hearing as the Managing Director of the petitioner was in judicial remand and the other Directors or CEO of the company are only nominal and are not conversant with the procedure and nature of work.
2.6. Though time was requested till 20.04.2023 on the ground that the Managing Director would be released on bail, without hearing the petitioner company, the 1st respondent issued impugned Order F.No. GEN/CB/ LIC/F/45/2021-CB-CBS, dated 11.04.2023 for continuing the suspension of Customs Broker Licence till conclusion of the investigation.
2.7. The Managing Director of the petitioner company was released on bail on 19.04.2023, but the 1st respondent issued the impugned order arbitrarily without affording any hearing and it falls against the principles of natural justice. Hence, Writ Petition.
3. Version of the Respondent
3.1. The 1st respondent filed its counter stating that under Regulations 16 or 17, a Customs Broker, who is aggrieved by any order passed by Principal Commissioner of Customs or Commissioner of Customs, may prefer an appeal to Customs, Central Excise and Service Tax Appellate Tribunal, vide Section 129A of the Customs Act, 1962 and as per the Customs Broker Regulations, 2018. The petitioner without availing such appellate remedy has directly approached this court by filing the writ petition to circumvent statutory procedure established by law. Reliance was placed on judgment of the Hon’ble Apex Court in Assistant Collector of Central Excise v. Dunlop India Ltd. and others1 and various Hon’ble High Courts reported in
