2019 (8) TMI 1385 - AT - Customs

Revocation of CHA licence - forfeiture of security deposit - imposition of penalty - forgery in the Bill of lading - change of date of the bill - Regulation 18 read with Regulation 20 and 22 of the CBLR, 2013 - time limitation - only case of appellant is that that the impugned show cause notice is not issued by Commissioner of Customs within 90 days of the date of the receipt offence report as it was put in post after the expiry of 90 days irrespective it was signed by the issuing authorities during the period of limitation itself. HELD THAT - Admittedly, the incidence report was received by the Commissioner of Customs on 27/10/2017. Admittedly, show cause notice bears 17/01/2018 as the date, period of 90 days as required in the above provision expires on 27/01/2018. As per the department the show cause notice of 17/01/2018 was dispatched on 17/01/2018 itself whereas as per Appellant it was put to Speed Post on 01/04/2018 that is after the expiry of the said period of 90 days. Whether the impugned show cause notice stands issued within the period of 90 days or not? - Regulation 20 (1) of CBLR, 2013 - HELD THAT - Any notice is set to be issued when it is put in proper form and placed in the hands of a person authorised to serve it and with the bonafide intent to have it served - In the present case, there is no dispute that the show cause notice was signed by Commissioner on 17/01/2018 i.e before the expiry of period of 90 days from the date of receipt of inquest report. No doubt, considering the above definition of word issue mere signing of notice cannot be equated with issuance of notice. As contemplated in the impugned regulation, the date relevant for issue would be the date on which the notice was handed over for service to the proper officer. The department has placed on record the copy of dispatch register maintained by the office of the Commissioner Customs in their regular course of business. Perusal thereof shows that the show cause notice of 17/01/2018 was dispatched for being put in process of post on 17/01/2018 itself. Once the notice was sent out of the office of issuing authority, it was definitely out of the control of the said authority. Hence, the obligation of said authority for issuing the same stands discharged with the said dispatch. The fact that date of service of the show cause notice upon the Appellant that is 07/02/2018 is absolutely not relevant for the impugned controversy, as the same is confined to issuance of notice. Event of issuance has to precede the event of service of notice. Hence the service of notice cannot be covered under the word shall issue - we are not convinced with the arguments put forth on behalf of Appellant about the impugned show cause notice to have been barred by in time. Appeal dismissed.

Summary

Issues Involved:
1. Whether the show cause notice was issued within the stipulated period of 90 days as per Regulation 20(1) of CBLR, 2013.
2. Whether the appellant committed forgery by altering the date on the Bill of Lading to circumvent the requirement of a BIS certificate.

Issue-wise Detailed Analysis:

1. Limitation Period for Issuing Show Cause Notice:

The appellant contended that the show cause notice was not issued within 90 days as required by Regulation 20(1) of CBLR, 2013. They argued that although the notice was signed on 17/01/2018, it was dispatched on 01/02/2018 and received by them on 07/02/2018, thus beyond the 90-day limit from the receipt of the offence report on 27/10/2017.

The department countered that the notice was dispatched on 17/01/2018 itself, within the 90-day period. They presented the dispatch register as evidence, showing the notice was sent out on 17/01/2018.

The Tribunal examined the meaning of "shall issue" in Regulation 20(1) and determined that a notice is considered issued when it is put in proper form and placed in the hands of a person authorized to serve it. They cited legal definitions and precedents, including the case of Kanubhai M Patel HUF vs Hiren Bhatt, which clarified that the issuance of a notice is complete when it is handed over for service, not merely when it is signed.

The Tribunal found that the notice was indeed dispatched on 17/01/2018, thereby fulfilling the requirement of being issued within 90 days. The date of service (07/02/2018) was deemed irrelevant to the issue of issuance.

2. Allegation of Forgery and Merits of the Case:

The appellant was accused of altering the date on the Bill of Lading from 06/09/2017 to 31/08/2017 to avoid the requirement of a BIS certificate mandated from 01/09/2017. The department's investigation confirmed the alteration through the EDI system and the shipping line OOCL.

The appellant's proprietor and an employee admitted to the alteration during their statements, which were not retracted. The Tribunal noted that the adjudicating authority relied on these statements and other corroborating evidence.

The Tribunal upheld the findings of forgery, emphasizing that the alteration was done to circumvent legal requirements. They referenced the Supreme Court's decision in R. Vishwanatha Pillai vs. State of Kerala, which stated that equity or compassion cannot override the law when fraud is involved.

Conclusion:

The Tribunal dismissed the appeal, confirming that the show cause notice was issued within the stipulated period and that the appellant committed forgery. The order under challenge was upheld, and the appeal was dismissed.