DEBANGSU BASAK, J. - (1.) The petitioner is aggrieved by an order in original dated November 22, 2017 passed by the Commissioner of Customs (Airport and Administration), Customs House, Kolkata. The impugned order revokes the licence granted in favour of the petitioner on the finding that, the petitioner failed to discharge his obligations under Regulation 11(n) of the Customs Brokers Licensing Regulations, 2013. The impugned order is appealable.
(2.) Learned Advocate for the petitioner submits that, notwithstanding the availability of a statutory appeal, the writ petition is maintainable, as the impugned order was passed by a person, who had no jurisdiction to do so. The incidents alleged in the impugned order are of 2012. A proceeding was initiated by the Directorate of Revenue Intelligence, Ludhiana through a show-cause notice dated January 9, 2014 under section 124 of the Customs Act, 1962. Such show-cause was adjudicated by the Additional Commissioner of Customs, Ludhiana, and an order in original dated February 27, 2015 was passed. A penalty of Rs. 1,00,000/- was imposed upon the petitioner, under Section 124 of the Act of 1962. The adjudicating authority did not find any violation of Customs House Agents Licensing Regulations, 2004. The petitioner preferred an appeal to the Commissioner of Customs (Appeal) on April 16, 2015. The petitioner received a show-cause notice dated June 23, 2017 under Customs House Agents Licensing Regulations, 2004. The petitioner replied thereto. Learned Advocate for the petitioner submits that, Regulation 22 of the Customs House Agents Licensing Regulations, 2004 prescribes a time limit of 90 days for the initiation of proceedings thereunder from the date of receipt of the offence report. In the present case, the alleged offence having taken place in 2012, a proceeding under the Regulations of 2004 in view of Regulation 22 thereof, is barred by limitation. The issue of limitation is an issue of jurisdiction. A writ petition on such an issue is maintainable. He relies upon 2017 (355) Excise Law Times page 30 (Cal) (Indo-Foreign (Agent) Pvt. Ltd. v. Union of India) in support of his contentions. In support of the contention that, the show-cause notice dated June 23, 2017 is barred by limitation, learned Advocate for the petitioner relies upon 2015 (322) Excise Law Times page 170 (Madras) (Sanco Trans Ltd. v. Commissioner of Customs, Sea Port/Imports, Chennai) , 2016 (337) Excise Law Times page 39 (Commissioner of Customs (General) v. S.K. Logistics) , 2016 (337) Excise Law Times page 41 (Del.) Indair Carrier Pvt. Ltd. v. Commissioner of Customs (General)) and 2016 (340) Excise Law Times page 119 (Del.) (Overseas Air Cargo Services v. Commissioner of Customs (General), New Delhi).
(3.) Learned Advocate for the petitioner refers to the show-cause notice as also the impugned order, without prejudice to the point of limitation raised. He submits that, it would appear from the impugned show-cause notice and the impugned order that, the adjudicating authority travelled beyond the show-cause notice in imposing the penalty as done. Referring to the impugned order, learned Advocate for the petitioner submits that, the impugned order invokes the provisions of the Customs Brokers Licensing Regulations, 2013. The show-cause notice having been initiated under the provisions of the Customs House Agents Licensing Regulations, 2004, the adjudicating authority misconducted the proceedings in invoking the provisions of the Customs Brokers Licensing Regulations, 2013 to impose the punishment. He submits that, the authorities did follow the procedure prescribed either under the Customs House Agents Licensing Regulations, 2004 or under the Customs Brokers Licensing Regulations, 2013, while dealing with the show-cause notice and the reply thereto, and in fact, invoked the jurisdiction under two separate Regulations. Both cannot run parallely in respect of the same offence. Consequently, he submits that, the impugned order stands vitiated, and the impugned order should be set aside.;