2006 PLP 2752 (PTD)

This petition is filed against the order, dated 24-4-2006suspending the petitioner's customs house agent licence on the allegation that the petitioner was committing "misdeclaration of manufacturing with the purpose to evade duty/taxes". Since then no further action has been taken by the respondents in the matter. As a result, the petitioner's business was brought to a sudden close. Learned counsel for the petitioner contends that the aforesaid impugned order has effectively been passed under Rule 104(3) of the Customs Rules, 2001 which provision is meant for situation of emergency. On the other hand, the impugned order purports to be under Rule 103 ibid. Under the principle of natural justice the procedure under Rule 103 requires prior notice of grounds for suspending a licensee's business.

2. In the present case, the allegation levelled in the impugned order is utterly vague because no particulars of the misdeclaration or about the alleged consequence of evasion of duties/taxes is provided in the impugned order or thereafter. The parawise comments filed by the respondents are equally vacant about the material on the basis of which the allegation of misdeclaration and evasion has been framed. This is compounded by the complacency of the respondents who have for the 11 weeks following the closure of the petitioner's business failed to take any further steps in the matter of confronting adverse material or sustaining the pre-emptive action taken. Such indifference is exhibited, notwithstanding the absence of any restraining order passed in the present petition. In the result it is alleged by the learned counsel for the petitioner that the impugned suspensory order is being applied against the petitioner as a final order without issuance of any show-cause notice or grant hearing to the petitioner or the recording of any finding against the petitioner.

3. Learned counsel for the respondents opposes the petition on the ground that the petitioner has an alternate remedy available under the Rule 103 ibid. The petitioner should avail the said remedy against the impugned action rather than move this Court.

4. Had the impugned action provided sufficient detail to apprise the petitioner about the substance of the allegation made against him or, for that matter had the parawise comments shared with the Court the material upon which the impugned action has been taken, the petitioner may have been sent to avail the alternate remedy. However, the neglect by the respondents to account for the alleged evasion of duties and taxes by the petitioner, makes the impugned action arbitrary and vague to sustain the impugned suspension. On the question of alternate remedy now pressed by the learned counsel for the respondents, the judgment of this Court, dated 12-9-2002 passed in Writ Petition No.16269-02 has dealt with the point squarely in facts that are very similar to the present case. Reference is made to the following relevant passage in the judgment:-- "I am afraid the submission of learned counsel for the respondent-Department is without merit. The appeal envisaged under sub-rule(2) aforesaid is only in respect of final orders which may have been passed under Rule 103 of the Customs Rules. In the present case, admittedly, no final order has as yet been passed under Rule

103. In fact, by his own submissions learned counsel for the respondent- Department has argued that the impugned order has, in fact, been passed in exercise of powers conferred under Rule 104(3) of the Customs Rules. The right of the petitioner to conduct its business among other things is a Constitutionally protected right. If this right is to be curtailed, there should be valid justification for such curtailment. Furthermore, as noted above Rule 104(3) envisages an application of mind by the Licensing Authority to justify immediate suspension of a licence. The rationale of the aforesaid provision is to protect the right of a customs clearing agent to carry on his business, pending inquiry, except in extraordinary circumstances spelled out by the Licensing Authority to justify immediate suspension of his licence. In the circumstances discussed above, I am not in any doubt the impugned order is not legally sustainable to the extent it orders immediate suspension of the petitioner's licence. The suspension of the petitioner's licence pending final adjudication under rule 103 of the Customs Rules, is therefore, declared to be illegal."

5. In view of neglect to act by the respondents for the last 11 weeks in the matter and for the gravity of the impugned action in curtailing the business of the petitioner, the present impugned action is held to be violative of the rule of natural justice and therefore declared to be illegal, without lawful authority and of B no legal effect. The respondents are at liberty to take action against the petitioner for the allegations levelled or any other allegation that the record may disclose. They shall, however, take such suitable action against the petitioner but only in accordance with law. Petition allowed. M.H./T-29/L Petition allowed.