w w w . L a w y e r S e r v i c e s . i n



Harsiddh Shipping Agency v/s Union of India


Company & Directors' Information:- SHIPPING CORPORATION OF INDIA LIMITED [Active] CIN = L63030MH1950GOI008033

Company & Directors' Information:- G R SHIPPING PRIVATE LIMITED [Active] CIN = U61100MH1990PTC058666

Company & Directors' Information:- U T AGENCY PVT. LTD. [Active] CIN = U45203WB1991PTC052617

Company & Directors' Information:- M R SHIPPING PRIVATE LIMITED [Active] CIN = U63032MH2008PTC185621

Company & Directors' Information:- S K H AGENCY PRIVATE LIMITED [Active] CIN = U52390TG2013PTC085384

Company & Directors' Information:- K C R SHIPPING COMPANY LIMITED [Strike Off] CIN = U35111TN1983PLC009801

Company & Directors' Information:- G & K SHIPPING PVT LTD [Active] CIN = U67200WB1967PTC027095

Company & Directors' Information:- P O SHIPPING AGENCY (INDIA) PRIVATE LIMITED [Strike Off] CIN = U63040MH2011PTC212928

Company & Directors' Information:- S R S SHIPPING PRIVATE LIMITED [Active] CIN = U63090TN2006PTC059161

Company & Directors' Information:- P B SHIPPING & AGENCY PRIVATE LIMITED [Active] CIN = U51101WB2003PTC096760

Company & Directors' Information:- O M AGENCY PRIVATE LIMITED [Active] CIN = U52321TN1961PTC004668

Company & Directors' Information:- S M AGENCY PVT LTD [Active] CIN = U51109WB1964PTC026129

Company & Directors' Information:- A K SHIPPING PRIVATE LIMITED [Active] CIN = U74120MH2011PTC225063

Company & Directors' Information:- S B K SHIPPING PRIVATE LIMITED [Strike Off] CIN = U63090TN2000PTC045291

Company & Directors' Information:- M S A SHIPPING PRIVATE LIMITED [Active] CIN = U63010TN2008PTC068185

Company & Directors' Information:- G R AGENCY LTD [Strike Off] CIN = U51109WB1951PLC019409

Company & Directors' Information:- P. K. SHIPPING PRIVATE LIMITED [Strike Off] CIN = U61200WB2008PTC130755

Company & Directors' Information:- D D SHIPPING PRIVATE LIMITED [Active] CIN = U63040DL1996PTC080417

Company & Directors' Information:- S N Q S AGENCY PRIVATE LIMITED [Active] CIN = U52110TZ1999PTC008761

Company & Directors' Information:- G T SHIPPING PRIVATE LIMITED [Strike Off] CIN = U35110MH2003PTC141432

Company & Directors' Information:- A & N AGENCY PRIVATE LIMITED [Under Process of Striking Off] CIN = U51909TN2003PTC052088

Company & Directors' Information:- A E AGENCY PRIVATE LIMITED [Active] CIN = U65993TN2000PTC044931

Company & Directors' Information:- S R W AGENCY PRIVATE LIMITED [Active] CIN = U52190WB2011PTC160006

Company & Directors' Information:- K L AGENCY PRIVATE LIMITED [Strike Off] CIN = U74899DL1992PTC050493

Company & Directors' Information:- S B T AGENCY PVT LTD [Strike Off] CIN = U51103WB1965PTC026347

Company & Directors' Information:- S S M SHIPPING CO PRIVATE LIMITED [Strike Off] CIN = U61100KA1981PTC004350

Company & Directors' Information:- H AND T SHIPPING INDIA PVT LTD [Strike Off] CIN = U63103DL2000PTC107166

Company & Directors' Information:- H. F. SHIPPING PRIVATE LIMITED [Active] CIN = U61200WB2012PTC171818

Company & Directors' Information:- S B M AGENCY PRIVATE LIMITED [Active] CIN = U51504TN2004PTC052953

Company & Directors' Information:- P 3 SHIPPING PRIVATE LIMITED [Strike Off] CIN = U63000MH2009PTC189817

Company & Directors' Information:- R K SHIPPING PRIVATE LIMITED [Active] CIN = U63090MH1995PTC095086

Company & Directors' Information:- G L S SHIPPING PRIVATE LIMITED [Active] CIN = U63090MH2005PTC157110

Company & Directors' Information:- A. Y. SHIPPING PRIVATE LIMITED [Strike Off] CIN = U74120MH2014PTC254578

Company & Directors' Information:- M P S AGENCY PVT LTD [Active] CIN = U51109WB1998PTC088149

Company & Directors' Information:- A. G. AGENCY PRIVATE LIMITED [Strike Off] CIN = U51109DL2008PTC186212

Company & Directors' Information:- R AND H SHIPPING PRIVATE LIMITED [Strike Off] CIN = U63013DL2005PTC139777

Company & Directors' Information:- HARSIDDH CORPORATION PRIVATE LIMITED [Active] CIN = U50500GJ2017PTC098929

Company & Directors' Information:- B. S. SHIPPING PRIVATE LIMITED [Active] CIN = U63000GJ2010PTC059768

Company & Directors' Information:- P M SHIPPING AGENCY PRIVATE LIMITED [Strike Off] CIN = U61100GJ1999PTC035516

Company & Directors' Information:- S N AGENCY PVT LTD [Strike Off] CIN = U66010WB1989PTC047981

Company & Directors' Information:- V AND S AGENCY PRIVATE LTD. [Strike Off] CIN = U74999DL1986PTC025148

Company & Directors' Information:- S A L SHIPPING PVT LTD [Strike Off] CIN = U61100DL1988PTC031000

Company & Directors' Information:- N S SHIPPING PRIVATE LIMITED [Strike Off] CIN = U63090MH2000PTC126397

Company & Directors' Information:- K R T SHIPPING COMPANY PRIVATE LIMITED [Strike Off] CIN = U63032MH1995PTC091728

Company & Directors' Information:- A P M SHIPPING PRIVATE LIMITED [Strike Off] CIN = U63090MH1998PTC115991

    Writ Petition No. 10198 of 2018

    Decided On, 22 November 2018

    At, High Court of Judicature at Bombay

    By, THE HONOURABLE MR. JUSTICE AKIL KURESHI & THE HONOURABLE MR. JUSTICE M.S. SANKLECHA

    For the Appellant: Dr. Sujay Kanatawala with Brijesh Pathak, Kartik Vig, Poorva Patil, Advocates. For the Respondent: Pradeep S. Jatly, Advocate.



Judgment Text


Akil Kureshi, J.

1. Heard.

2. Rule is made returnable forthwith and by consent of the parties, the matter is taken up for final disposal today.

3. The petitioner is a registered partnership firm. The petitioner is registered as Customs broker. The petitioner has prayed for direction to the respondents to remove "Alert" inserted against the petitioner in its electronic system. The petitioner has also challenged several show cause notices issued by the Customs Authorities calling upon the petitioner why certain late fine charges with penalty should not be recovered from the petitioner.

4. Briefly stated, the facts are as under :-

4.1 As a Customs broker, the petitioner enables the importers to file necessary documents and declarations before the Customs Authorities at the time of import of goods into India. The case of the department is that in the process of so doing, the petitioner had committed certain deliberate breaches of rules. The allegation of the department is that in order to avoid late fine charges, the petitioner was availing 'Regular Bill of Entry" as "Advance Bill of Entry". The petitioner, on behalf of the importers, though filed the Bills of Entry late but showed in the system as if it was filed as "Advance Bill of Entry". As a result, the Customs' system treated these Bills of Entry as advance and assessment was completed accordingly. According to the department, the petitioner in the process avoided late payment charges.

4.2 According to the department, several other Customs brokers had employed the same modus operandi. The department detected such irregularities and estimated that the late payment charges in all to the tune of approximately Rs. 9 Crores became recoverable. So far as the petitioner is concerned, this amount is estimated at Rs. 89 Lacs.

4.3 The department, it appears, took up the issue with the concerned Customs brokers. Many of those who were informed, paid up the late charges without protest. The petitioner, however, was unmoved. The department, therefore, placed the name of the petitioner agency in its electronic system under "Alert". Subsequently, the department also issued as many as 18 show cause notices in the month of May, 2018 and thereabouts calling upon the petitioner to show cause why certain late fine charges under Section 46 of the Customs Act, 1962 should not be recovered with penalty under Section 117 of the said Act.

4.4 The petitioner has, under such background, prayed for reversal of the 'Alert' against the petitioner and has also challenged the show cause notices.

5. Learned Counsel for the petitioner submitted that by virtue of placing the name of the petitioner in the "Alert", the department is preventing the future clearances of the petitioner unless and until the petitioner pays up the entire demand of Rs. 89 Lacs. He submitted that this action of the department is without authority of law. He pointed out that the demand is yet to be adjudicated. The petitioner is contesting the demand. There cannot be a coercive recovery of the demand even before the same has been adjudicated. Learned Counsel further submitted that even if there is any law for payment of late fine, statute vests the competent authority the discretion of reducing or waiving the same. He submitted that in the present case, all the late filing of Bills of Entry were regularized by the competent authority. In the context of the challenge to show cause notice, Learned Counsel submitted that the contents of the notice would suggest that the authority has prejudged the issue.

6. On the other hand, Learned Counsel for the department submitted that the petitioner had adopted an irregular procedure to avoid late fine charges. When it was detected, the petitioner was asked to pay up the same. According to him, the action of the department is just and proper. He further submitted that the petitioner has not filed reply to the show cause notices, instead, he has directly challenged the same before the High Court.

7. Insofar as the challenge to the show cause notices is concerned, we are not inclined to interfere. The allegations made in the show cause notices and the petitioner's possible defence as it emerges from the averments made in the Writ Petition need to be adjudicated by the competent authority. In a Writ Petition, we would be extremely slow in striking down the show cause notice unless the petitioner demonstrates lack of jurisdiction or breach of natural justice or some such defect which goes to the very root of the matter. In the present case, we do not notice any such ground to quash the notices in exercise of writ jurisdiction. The petitioner must reply to the show cause notices and cooperate in the adjudication thereof. The petitioner has so far not filed any reply. If the petitioner wishes, such replies may be filed latest by 10-12-2018. The petitioner shall cooperate with the adjudication of such notices.

8. However, insofar as the action of the department in placing the name of the petitioner in the 'Alert' is concerned, the issue stands on a different footing. During the course of the arguments, in response to our queries, Learned Counsel for the department clarified two issues. Firstly, the action of the department in placing the name of the petitioner in the 'Alert' was on account of unpaid late fine charges which are the subject matter of the show cause notices. Secondly, the consequences on account of the name of the agency being placed in the 'Alert' list would be that all future clearances of such agency would not be made unless the amount demanded by the department is paid up. In other words, in the present case, unless and until the petitioner pays up the entire amount of Rs. 89 Lacs, future clearances of the Bills of Entry filed by the petitioner would not be permitted. In our opinion, this would be wholly impermissible. The amount demanded by the department and the recovery of which is made a precondition for clearing the future Bills of Entry of the petitioner is the same for which the department has issued show cause notices to the petitioner calling upon the petitioner why such deman

Please Login To View The Full Judgment!

ds should not be confirmed. On the other hand, the department seeks recovery of such amount coercively by blocking the petitioner's future clearances. Obviously, there cannot be recovery coercively made even before the demand is confirmed. 9. For such reasons, the respondents are directed to delete the name of the petitioner from the 'Alert' list. 10. The petition is disposed of in the above terms. We have not expressed any opinion on rival contentions about the petitioner's liability to pay late fine charges or being visited with penalty. The adjudicating Authority shall decide the issues independently on the basis of the material that may be brought on record.
O R