TMI Blog2014 (9) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... mount of Customs Duty, interest and nominal fine and penalty based upon the true and the full disclosure. Therefore the first respondent has concluded that the importer was guilty of undervaluation and that consequently, the petitioner cannot escape liability. But, what the first respondent has failed to take note of, is the fact that the revocation of licence now ordered by the first respondent, throws the petitioner out of business once and for all and deprives them of their very livelihood. Once the importer has escaped with a nominal fine on the ground that a true and full disclosure had been made, it would be unfair to impose the extreme penalty upon the petitioner. - petitioner is entitled to succeed on both grounds. - impugned order set aside - Decided in favor of CHA. - Writ Petition No.30884 of 2013 and M.P.Nos. 1 and 2 of 2013 - - - Dated:- 19-8-2014 - V. Ramasubramanian,JJ. For the Petitioner : Mr. P. Hari Radhakrishnan For the Respondents : Mr. A. P. Srinivas Standing Counsel. ORDER This is a Writ Petition filed by a Customs Broker, challenging the revocation of their licence and the forfeiture of their Security Deposit, ordered by the first Re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er was granted, but the respondents were permitted to proceed with the enquiry under Regulation 22. 9. Accordingly, the personal hearing went on and eventually an order dated 11.11.2013 was passed, revoking the licence granted to the petitioner and forfeiting the Security Deposit. Aggrieved by the said order, the petitioner is before this Court. 10. The impugned order is challenged primarily on the following grounds:- (1) The impugned proceedings were not initiated within the period of 90 days prescribed under Regulation 22 (1). (2) The entire charge for which the petitioner was proceeded against, relate to an Import made by a company by name M/s. I-Tech Imports and Exports. That company was also issued a show cause notice dated 12.05.2010. But that company went to the Board of Settlement Commission and got an order in their favour. Hence there is no question of penalising the petitioner. (3) That the impugned order is in violation of the principles of natural justice. CONTENTION NO.1: 11. The first contention is that the proceedings under Regulation 22 were initiated beyond the time limit prescribed by Regulation 22(1). In order to test the correctness of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs to inquire into the grounds which are not admitted by the Customs House Agent. (3)The Deputy Commissioner of Customs or Assistant Commissioner of Customs shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs House Agent, for the purpose of ascertaining the correct position. (4)The Customs House Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing. (5)At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings and submit his report within ninety da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted the period of 90 days only from the date of receipt of the prohibition order issued by the Commissioner of Customs, Tuticorin on 06.09.2012. This, according to the petitioner, will not satisfy the requirement of Regulation 22. 16. The respondents have filed a counter affidavit. In the counter affidavit, it is the claimed by the respondents that the petitioner was granted licence by the Chennai Customs and that they were operating in Tuticorin Customs. According to the respondents, the Commissioner of Customs, Tuticorin forwarded the case of the petitioner to the Commissioner of Customs at Chennai only by a letter dated 06.09.2012 and hence based upon the same, a show cause notice was issued on 12.11.2012 within the period of 90 days prescribed in sub-regulation (1) of Regulation 22. In the counter affidavit, the respondents have not chosen to deny the averments of the petitioner in ground No.(b) of para 16 of the affidavit that the show cause notice dated 18.05.2010 issued by the DRI and the Order-in-Original dated 31.01.2011 passed by the Additional Commissioner, Tuticorin were all marked to the Chennai Commissionerate and that the Chennai Commissionerate had knowledge abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances, the interpretation sought to be given by the petitioner is more acceptable. 20. The time limit prescribed in Regulation 22(1) has to be understood in the context of the strict time schedule prescribed in various portions of the Regulations. Regulation 20(2), for instance, entitles the Commissioner, to suspend the licence of an agent, in appropriate cases where immediate action is necessary. Regulation 22(3) prescribes a time limit of 15 days. Regulation 22(1) prescribes a time limit within which action is to be initiated. It also prescribes the time limit under Regulation 22(5). Therefore, considering the fact that the whole proceedings are to be commenced within a time limit and also concluded within a time frame, I am of the view that the show cause notice issued to the petitioner on 08.05.2010 with a copy marked to the first Respondent should be taken as the date of receipt of the offence report. Consequently, the period of 90 days should commence only from that date. If so calculated, the impugned proceedings have obviously been initiated beyond the period of 90 days. 21. The respondents rely upon a circular bearing No.9/2010-Customs, dated 08.04.2010, issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... herefore, the decision taken in such a case cannot be relied upon. 24. Similarly, the decision of the Division Bench of the Delhi High Court, in Aval Exports vs. Union of India (2014 (301) E.L.T. 14 (Del.), relied upon by the learned counsel for the respondents, cannot also go to the rescue of the respondents. The case before the Delhi High Court concerned some applications filed for the issue of value based duty free licences in accordance with the Export and Import policy in vogue. The applications were kept pending for some time and eventually, the policy itself underwent a change. When the matter was taken up, it was argued that the applications ought to have been disposed of within the time stipulated. But the said argument was rejected, on the ground that the time prescribed therein was only directory and not mandatory. 25. In the case on hand, it is not the contention of the respondents that the time limit prescribed in Regulation 22(1) is only directory and not mandatory. It is not even the contention of the respondents that the time limit prescribed in Regulation 22(1) need not be strictly adhered to. On the question that the first respondent is duty bound to initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X
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