Sushilkumar Jivanram Gupta vs Union of India

Heard Mr. S.G. Jagtap, Adv. for the petitioner and Mr. S.K. Mishra, Assistant Solicitor General of India for the respondents. The prayer of the assessee is to direct the respondents to take steps and to implement the order dated 12-10-2010 passed by the Chief Commissioner of Customs. By the said order, earlier order dated 3-9-2010 suspending the license of the petitioner has been cancelled. The order dated 3-9-2010 issued under Regulation No. 20 of the Customs House Agents Licensing Regulations, 2004 (hereinafter referred to as "the Regulations of 2004") was earlier questioned before this Court in Writ Petition No. 4849 of 2010 and on 4-10-2010, that petition was allowed to be withdrawn with liberty to the petitioner to avail of the appropriate remedy in law.

It appears that, thereafter, the petitioner approached the Chief Commissioner of Customs and Central Excise by way of representation. That Authority has, on 12-10-2010, passed the order of which implementation is sought. The Authority has mentioned Regulation 20(2) of the Regulations of 2004 r/w. Section 5(2) of the Customs Act as source of power. According to Mr. Jagtap, Adv., said order is an administrative action.

It appears that, on 12-6-2012, a preliminary objection was raised before this Court on behalf of the Commissioner of Customs and Central Excise, Nagpur. In view of that objection, this Court has passed the following order:

In the preliminary submissions on behalf of the Commissioner of Customs and Central Excise, Nagpur there is a reference to the powers and the duty of the Chief Commissioner of Customs in para 4 and it is stated that this Committee as on 30-9-2010 met and decided to accept the order dated 3-9-2010 which has been passed by the Commissioner of Customs - respondent no. 2. Once that order is accepted, the order of which enforcement is sought namely dated 12-10-2010 is non est and cannot bind the department. The petitioner''s remedy against the suspension was not to move the Chief Commissioner, but to take recourse to Section 129D of the Customs Act, 1962.

For appreciating this submission, we are required to peruse the order dated 30-9-2010, copy of which has not been annexed to the preliminary submissions. In all fairness, Mr. Mishra states that he would produce the same within one week.

Stand over for one week i.e. 19-6-2012.

Steno copy of this order be supplied as per rule.

Thereafter, the petitioner has filed a rejoinder stating that there is no order dated 30-9-2010.

An original of the order-sheet which, according to the respondents, shows the approval to the order dated 3-9-2010, is produced before this Court. That original shows that the Chief Commissioner at Nagpur has approved the note prepared on 28-9-2010 and 29-9-2010 on 30-9-2010. The said note was then forwarded to the Chief Commissioner (Bhopal Zone) and it was returned back as the Chief Commissioner was not available at Bhopal. It was then sent to the Chief Commissioner of Customs at Delhi. The Chief Commissioner at Delhi has signed it, but he has not put any date on it.

Learned Counsel Mr. Jagtap has pointed out that the aforementioned signature at Delhi is obviously put after 26-10-2010 as per movement of file, as reflected in the reply-affidavit. Mr. Mishra, learned A.S.G.I. has submitted that as the note approved by the Chief Commissioner on 30-9-2010 is accepted by the Chief Commissioner at Delhi, the signature must be presumed to have been made on 30-9-2010 and therefore only, that Authority has not placed any date. We do not find it necessary to go into this controversy.

The question that arises is whether the Chief Commissioner of Customs can interfere with a quasi-judicial exercise of power on Administrative side. The said question arises because of the statement made by Mr. Jagtap, Adv. that order dated 12-10-2010 passed by the Chief Commissioner of Customs is an administrative order. The answer to the said question obviously will be - "no".

We further find that Regulation 20 deals with suspension or revocation of license and its sub-regulation (2) also terms word ''suspension'' as an interim measure in emergent situation. Section 22 thereof deals with the procedure for suspending or revoking the licence under Regulation No. 20.

Mr. Jagtap, learned Counsel has attempted to demonstrate that the events noticed warranting suspension are much older and therefore, they are beyond the time limit stipulated in Regulation No. 22, sub-regulation (1). He submits that the order dated 3-9-2010 was bad in law and unsustainable.

Mr. S.K. Mishra, learned A.S.G.I. has attempted to urge that the order dated 12-10-2010 is without any authority in law because the Chief Commissioner does not possess any power - either in the Regulations of 2004 or even under the Customs Act.

We have perused various provisions and find that authority is not conferred upon the Chief Commissioner when a quasi judicial order is passed under Regulation No. 20 r/w. Regulation 22 by a Commissioner. The Chief Commissioner could have interfered with it only if he had an express authority due to a particular Regulation or a provision of law. Unless such provision or Regulation of law is pointed but to this Court, the order dated 12-10-2010 cannot be said to have any judicial existence and it cannot be implemented. Insofar as challenge to order dated 3-9-2010 is concerned, the issue is already covered by the order passed by this Court dated 4-10-2010 in W.P. No. 4849 of 2010. Hence, with liberty to the petitioner to follow that course further, we dispose of the present petition. No costs.