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2015 (12) TMI 1148

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..... the customs broker including the revocation of the licence. The Regulations contemplates action against the customs broker dehors the provisions under the Customs Act. Therefore, the regulations cannot be treated as sub-ordinate legistlation. Moreover, every implementing authority of any fiscal statute is only performing a public duty. Therefore, it cannot be said that the provision is to be termed as 'directory' just because its adherence is in the nature of performance of a public duty. What is to be considered is the object of the enactment in prescribing a period for the performance of such public duty. Purpose for which time limit has been prescribed is to curb the smuggling of goods and in the result to cancel the licences of the brokers if they are involved and to impose penalty. The interpretation of a statute must always be to give a logical meaning to the object of the legislation and the aim must be to implement the provisions rather than to defeat it. When a time limit is prescribed in Regulations, which empowers action in Regulation 18 and procedure in Regulation 20 (1), the use of the term 'shall' cannot be termed as 'directory'. It is pertinent to mention here .....

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..... 10 Bills of Entry, through which undeclared goods were imported and prohibitory orders were issued on 02.02.2015. Aggrieved against the order, an appeal has been preferred before the Customs, Central Excise and Appellate Tribunal, Mumbai. Subsequently, the respondent has passed an order on 06.05.2015, under Regulation 19 (1) of the CBLR, 2013 and the suspension order has been ordered to be continued, vide proceedings, dated 25.05.2015 and also issued the impugned show cause notice dated 25.05.2015 under Regulation 20, proposing to conduct an enquiry for revocation of license and imposition of penalty under Regulation 18 of the said Regulations. Aggrieved and contenting that the notice has been issued beyond the stipulated time of 90 days as prescribed in Regulation 20 (1) of CBLR, 2013, the Petitioner has approached this Court. b. WP.No.3374/2015:- The petitioner was granted a licence to operate as a customs broker after satisfying all the norms. Whileso, during the course of their business activities, the Petitioner acted as a customs broker of one M/s.Kalp Impex, Surat. Alleging that the Advance Authorization Scheme was misused, an investigation was conducted by the Director .....

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..... tials of the importers, filed the bill of entry and thereby violated the regulations of CBLR, 2013 and CHA Regular License Regualtions. An order suspending the license was passed on 19.11.2014 under the regulation 19 of CBLR, 2013. Subsequently after verification, the suspension has been revoked. However, the present impugned notice dated 23.12.2014 has been issued. Aggrieved and contending that the notice is beyond the stipulated period, the petitioner has approached this Court. e. WP.No.16283 /2015:- The petitioner is a customs House Agent with a license granted under section 146 of the customs Act and is the holder of CHA Regular License. It was alleged that the petitioner filed Bill of Entry of mis-declared goods during the period April 2011 to September 2013, on behalf of their importers, wherein the goods were allegedly undervalued. Further, it was alleged that the petitioner acted as customs broker without authorisation and without verification of the antecedents and credentials of the importers, filed the bill of entry and thereby violated the regulations of CBLR, 2013 and CHA Regular License Regulations. An order suspending the license was passed on 19.11.2014 under t .....

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..... he Customs Act, 1962 and the IEC holders were not aware of the import consignments and they were compensated monetarily and the petitioner did not physically verify the details. The voluntary statements of various persons have been extracted and relied upon to contend that there has been clear violation of the Regulations 11 and 18 of CBLR, 2013 by abetting and involving the transaction and therefore, the license was suspended under Regulation 19 (1) of CBLR, 2013 and the same was confirmed after enquiry on 25.05.2015. The notice would be in time if the Saturdays, Sundays and public holidays are excluded and the said time limit is only directory and not mandatory. The learned counsel for the petitioner requested the respondent not to take any action as the appeal before the CESTAT Mumbai is pending and it is only for that reason, no action was taken against the petitioner and being a Customs House Agent licensee, the petitioner has misused his position and defeated the very purpose for which the license was granted and therefore, the Writ Petition is liable to be dismissed. b. WP.No.3374/2015:- The importer M/s.Kalp Impex, for whom the petitioner has acted as Customs Broker, h .....

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..... Customs House Broker has misused the licence and aided the import of various types of edibles by their clients and importers, M/s.Shahi Foods, Chennai and M/s.High Regards International, Chennai by mis-declartion, description, value, Retail Sale Price and evaded duty during the period April 2011 to September 2013. The petitioner have permitted middlemen Mr.Ramadass and Mr.Thangaraj of M/s.Seair Shipping Services to use the licence and clear the goods. The above acts are in clear violations of Regulations 11 and 18 of CBLR, 2013 and voluntary statements have been given by various persons involved in the transaction accepting the modus operandi. Further, the DRI has communicated about the alleged offences vide letter dated 23.10.2014 and the order of suspension was passed on 19.11.2014. Subsequently, after hearing , the order of suspension was revoked. However, it does not absolve the petitioner of the offence and therefore, the present notice has been issued. In view of the fact that the offence was brought to their knowledge only on 23.10.2014, the notice under Regulation 20 dated 8.01.2015 is well within time. The date of show cause notice, proposing to take action for the offens .....

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..... d had not verified the antecedents of the importers and received consideration from the said E.Jaikumar for using their license. The involvement of the petitioner in smuggling R-22 gas Cylinder, which is an ozone depleting substance, is clearly established, as he had without proper verification caused the Bills of Entries to be filed in their name by a third party on receipt of consideration and thereby, violated Regulations 11, 18 and 19 of the CBLR,2013. The licence was suspended on 19.01.2015 and after hearing the petitioner, the impugned order dated 26.02.2015 under Regulation 19(2) was passed, confirming the order of suspension. The impugned notice dated 26.02.2015 has been issued after taking into consideration that the petitioner has prima facie violated the provisions of the Customs Act and the CBLR, 2013 and hence, the impugned proceedings are sustainable. Further, the petitioner has stalled the enquiry proceedings by approaching this Court. The enquiry initiated as per the Regulations has to go on and the same has to be challenged by preferring the statutory appeal. The retention of ID card is of no consequence as the card is employer specific in terms of Regulation 17(1) .....

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..... 015, has contended that the show cause notice was issued by DRI on 03.03.2014 to the petitioner in W.P.No.16283/15 and a copy of the same has been marked to the respondent. The learned counsel also pointed out that the order of suspension of license was passed on 19.11.2014 and the same was also revoked on 08.01.2015 and 23.12.2014 respectively, after taking into consideration that the offense was detected by DRI in October 2013. Hence the present notices dated 08.01.2015 and 23.12.2014 are without jurisdiction and is unsustainable. The learned counsel has contended that the period prescribed under Regulation 20 is mandatory and has relied upon the judgments reported in 2014 (309) ELT 433 (A.M.Ahamed CO Vs. Commissioner of Customs, Chennai), 2014 (310) ELT 673 (The Commissioner of customs, Chennai Vs. CESTAT and others), 207 (218) ELT 647 (Union of India Vs. Vicco Laboratories) and AIR 1999 SC 1281 (Babu Verghese and others Vs. Bar Council of Kerala)in support of his above contentions. 6. The learned counsel for the petitioner in W.P.Nos.8946 and 17059 of 2015 has contended that the basis for initiating the present proceedings are that E.Jaikumar was not eligible to be author .....

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..... Commissioner of Customs (Imports) chennai), 2009 242 ELT 487 Madras (NLC Ltd Vs. Union of India) , 1975 1 SCC 559 (Ramchandra Keshav Adke (dead) by Lrs and others Vs. Govind Joti chavare and others), 1980 2 SCC 554 (State of Bihar and another Vs. J.A.C Saldanha and otahers), 1997 II CTC 507 (MSD Thenraja Vs. Executive Officer), 1998 5 SCC 749 (Nepa Agency Co Pvt Ltd and Union of India), sought for the quashing of the impugned proceedings in both the writ petitions. 7. Per contra, the learned Additional Solicitor General of India, Mr.G.Rajagopalan appearing for Mr.M.Devendran, Standing Counsel for the respondents in WP.Nos.8946 and 17059 of 2015 has vehemently contended that the petitioners, being granted license to perform the duties of the Customs department, have misused the license and have aided in smuggling goods of harmful nature. The learned ASGI also submitted that the period of 90 days, prescribed in Regulation 20 is only directory and not mandatory and that from the various statements obtained during the enquiry, the commission of the offences alleged are established and if the petitioners are permitted to operate, it would cause serious prejudice to the department. T .....

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..... tice has been issued. In addition to the judgments relied upon by the ASGI supra, the the learned counsel also relied upon the judgments in AIR 1952 SC 181 (Dattatraya Moreshwar Vs. The State of Bombay and others), AIR 1965 SC 895 (Raza Buland Sugar Co. Ltd Vs. Municipal Board, Rampur), 2003 8 SCC 498 (P.T.Rajan Vs. TPM Sahir), 2013 (290) ELT 3 (PML Industries Vs. Commissioner of Central Excise), 1983 2 SCC 433 A.M.Ahamed CO Vs. Commissioner of Customs, Chennai) and sought for dismissal of the writ petitions. 9. The learned counsel Mr.RajnishPathyl, appearing for the respondent in W.P 3375/15 has contended that the present proceedings under Regulation 20 has been initiated only after prima facie case was made out against the petitioner during the enquiry. Further, the writ petition is not maintainable, as he can very well approach the CESTAT, if they are aggrieved by any order that may be passed against them. The petitioner has smuggled gold, R-22 gas and Foreign cigarettes under the guise of importing other goods during December 2013 to Jan 2014. The voluntary statements disclose the serious offences committed by the petitioner in collusion with the importers. The revocation .....

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..... 9;mandatory'. (c) Whether the notices have been issued beyond the stipulated time. 12. Point (a): The learned counsel for the petitioners have contended that the impugned show cause notices have been barred by law and hence, without authority. Therefore, the writ jurisdiction under Article 226 can be invoked. 13. Per contra, on the side of the respondents, it is contended that the writ petitions are premature and when there is an alternative remedy, the writ petitions are not maintainable and the decision of the Honourable Supreme Court rendered in the case Nepa Agency Co Pvt Ltd Vs. Union of India (1998 5 SCC 749) was relied upon. 14. It is now settled law that the challenge to the show cause notice is not a bar, but must satisfy the following tests; (i) Where the notice is issued without authority/ jurisdiction. (ii) Where the notice is issued beyond the period prescribed by law. (iii) Where the notice is issued with a prejudiced mind. (iv)Where the issuance of the notice is itself an abuse of process of law. 15. In the decision reported in 2007 (ELT) 168 (Siemens Ltd. Vs. State of Maharashtra), the Hounourable Supreme Court has held as .....

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..... 31. It is of course true that the show cause notice cannot be read hyper-technically and it is well settled that it is to be read reasonably. But one thing is clear that while reading a show cause notice the person who is subject to it must get an impression that he will get an effective opportunity to rebut the allegations contained in the show cause notice and prove his innocence. If on a reasonable reading of a show cause notice a person of ordinary prudence gets the feeling that his reply to the show cause notice will be an empty ceremony and he will merely knock his head against the impenetrable wall of prejudged opinion, such a show cause notice does not commence a fair procedure especially when it is issued in a quasi judicial proceeding under a statutory regulation which promises to give the person proceeded against a reasonable opportunity of defence. 17. In 2014-300-ELT-185-AP (SBQ Steels Limited Vs. Commissioner of Customs), it has been held as under:- 21. In Shakti Me-Dor ltd's case (supra), Bajaj Tempo ltd case (supra), Punjab Bone Mills Case (supra) and in Charminar Nonwovens Ltd.'s case (supra), cited by the respondent's counsel, it has be .....

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..... first respondent should only have an open mind. If his mind is closed with predetermined conclusions, the requirement of giving an opportunity to show cause becomes nugatory. 19. In WP.No.27726/14 batch etc. by order dated 30.4.2015, this court has held as under:- 17. A perusal of the above emphasized portion, it is clear that the respondent has categorically come to the conclusion that the Customs Broker failed to fulfill the obligation cast upon them under the regulations mentioned to therein and committed professional misconduct, while acting as custom broker. Therefore, relying upon the above emphasized portion in the show cause notice, the learned counsel for the petitioner would contend that even at the stage of the show cause notice itself, the respondent has completely made up his mind and reached definite conclusion about the failure of the petitioner to fulfill the obligations cast upon them and also about the professional mis-conduct while acting as a Customs Broker. I find a considerable force in the contention of the learned counsel for the petitioner. In fact, this Court is well aware of the settled legal position that the show cause notice cannot be read h .....

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..... writ court would not hesitate to interfere even at the stage of issuance of show cause notice. The interference at the show cause notice stage should be rare and not in a routine manner. Mere assertion by the writ petitioner that notice was without jurisdiction and/or abuse of process of law would not suffice. It should be prima facie established to be so. Where factual adjudication would be necessary, interference is ruled out. 31. Case of the respondent that the classification of the said products having attained finality pursuant to the decision of this Court, the appellants have no jurisdiction to issue impugned show cause notice on the ground on which it has been issued and it virtually amounts to re-opening of the issue which stands concluded by the decision of this Court, and that therefore it is an abuse of process of law. The High Court after referring to the history of litigation rightly concluded that the matter stood concluded by judgments of this Court and the High Court in respondents' case. 33. However, as rightly observed by the High Court the impugned show cause notice was nothing but a repetition of the earlier show cause notices with slight variatio .....

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..... edural irregularity and hence was not curable and the requirement of notice under Section 143(2) cannot be dispensed with. Thus, in the light of the decision of the Apex Court, learned counsel for the assessee submitted that the Tribunal committed serious error in drawing an inference on mere appearance of the assessee pursuant to notice issued under Section 142(1) of the Act and on the note referring that arguments are heard and the same will be considered for completion of assessment , that there was a waiver from the side of the assessee with reference to issue of notice under Section 143(2) of the Act. He further submitted that the Revenue does not dispute the fact that there was no notice issued under Section 143(2) before passing an order of assessment under Section 148 and the notice issued under Section 142(1) could not be treated as notice issued under Section 143(2) of the Act. He further pointed out that the assessee requested the Assessing Officer to treat the original return filed as one filed in response to the notice issued under Section 148. Thus, he submitted that the view of the Tribunal that there was no prayer for treating the original return as return in compl .....

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..... losure of all the facts relating to the imported goods. Besides, he has also submitted details of post importation services/repairs undertaken by him and expenditure incurred on servicing, supply of spare parts, incidental charges, etc., which were not included in the original import value of the goods. The remittances were also made by him including service charges from India to Singapore through banking channels. His remittance transactions are thus licit transactions. Therefore, it is contended that when the importer has now got a clean chit from the settlement Commission, the petitioner who is only a Broker, cannot be penalised. 27. In paragraphs 25 and 26 of the Impugned Order, the first respondent has dealt with this aspect. The first respondent has rejected this contention on the ground that the Settlement Commission settled the case upon confirmation of additional amount 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. 28. But, what the first respondent h .....

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..... imself to the question whether or not the discretion should be so exercised having regard to the facts and circumstances of the case. The Additional Collector of Customs who passed the order of confiscation undoubtedly had the discretion to give an option to the appellants to pay a fine in lieu of confiscation. Presumably the Additional Collector of Customs assumed that he was bound to confiscate the goods because he has not adverted to this aspect in his order. He had undoubtedly the authority under law to give an option to the importers to pay such fine as was considered appropriate by him (not exceeding the full market value of the goods in question) in lieu of confiscation of the goods. We are of the opinion that since the Additional Collector of Customs who passed the order for absolute confiscation had the discretion to give the option for redemption, it was but just, fair and proper that he addressed himself to this question. The order passed by the Additional Collector of Customs as confirmed by the Customs, Excise and Gold (Control) Appellate Tribunal therefore requires to be modified only to this limited extent. 4. We therefore direct that the matter be remitted to t .....

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..... od that the officer has the discretion and it is open to him not to give the option to pay fine in lieu of confiscation. Therefore, the finding of the learned Judge that the goods are prohibited is not correct and deserves to be set aside. In view of the above, the finding that the goods are prohibited is set aside. 28. In 1975 1 SCC 559 (Ramchandra Keshav Adke (dead) by Lrs and others Vs. Govind Joti chavare and others) it has been held as under:- 14. Thus, the first point to be considered is, whether the requirements, of these provisions are mandatory or directory. No universal rule , said Lord Campell (1) can be laid down as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of' justice to try to get at the real intention of the legislature by carefully attending to the whole scope. Such intention of the legislature is therefore to be ascertainedupon a review of the language, subject matter and importance of the provision in relation' to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act .....

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..... Gujarat v. Shantilal Mangaldas Ors.(1)Expounding the submission it was stated that sub-s.(8) of s. 173 clearly indicates the power of further investigation after submission of a report and that power is conferred on the officer in charge of a police station only and, therefore, the State Government was incompetent to direct further investigation. It was further contended that in view of the provision contained in s.173(8) it would not be open to the Court to so interpret the word 'superintendence' in s. 3 of the Police Act as to empower the State Government to direct investigation being done by some one other than the statutory authority envisaged by s.173(8) because such an interpretation would derogate from the principle that where a thing is required by a statute to be done in a particular way it shall be deemed to have prohibited that thing being done in any other way. In Ex-parte Stephen's(2), the principle is stated that if a statute directs a thing to be done in a certain way that thing shall not, even if there be no negative words, be done in any other way. Subba Rao, J. in Patna Improvement Trust v. Smt. Lakshmi Devi Ors.(3), spelt out the combined effect o .....

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..... rt is dated 24.05.2011 and in respect of the respondents in C.M.A.Nos.1423 to 1426/2014, the enquiry/offence report is dated 20.03.2012 and earlier to the said notification, time limit was prescribed to CHAs to submit their response within 45 days to the notice issued under Regulation 22(1), but as per the above said notification, time limit has also been prescribed for the issuance of such notice also. The Tribunal has noted the fact that though the order of suspension came to be passed on 23.06.2011 in C.M.A.Nos.1422/2014 in respect of M/s.Manjunatha Shipping Services Limited, which was ordered to continue, vide order dated 02.09.2011 and in respect of C.M.A.Nos.1423 to 1426/2014, the original orders of suspension came to be passed on 25.04.2012, which was ordered to continue, vide order dated 23.05.2012, the appellant did not take any steps to issue notice under Regulation 22(1). In terms of the notification dated 20.01.2004 prescribing time limit to Regulations 20 and 22 of CHALR 2004, it is not open to the first respondent to issue notice under Regulation 22(1) as the time limit of 90 days from the date of offence report/enquiry report has expired long back. 33. Per contr .....

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..... may' is not determinative of the fact whether the provision is directory or mandatory. There is no general rule in respect of as to when a provision is to be treated as directory or mandatory, but in every case the object of statute must be looked. 38. In AIR-1957-SC-912 (State of UP Vs. Manbodhan Lal Srivastava), it has been held as under:- The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the Legislature must govern and these are to be ascertained, not only from the phraseology of the provision but also by considering its nature, and the consequences which would follow from construing it the one way or the other... In Banwarilal Agarwalla Vs. State of Bihar (AIR-1961-SC-849), a Constitution Bench of the Supreme Court held that no general rule can be laid down for deciding whether any particular provision in a statute is mandatory, meaning thereby that non observance thereof involves the consequence of invalidity or only directory, i.e. a direction the non observance of which does not entail the consequence of invalidity, .....

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..... the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. 63. Another simple test to determine whether a time limit stipulated in a rule is directory or mandatory, is to see whether there is any indication in the Rule itself about the consequences of non compliance with the same. If a statutory provision contains a prescription and also stipulates the consequences of non compliance with the condition, it would normally be taken to be mandatory. If the consequences of non compliance are not indicated, then, the provision has to be seen only as directory. 40. In 1997 9 SAC 132 (Mohan Singh Vs. IAAI) , the Apex Court has held thus:- If the object of .....

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..... rsons who avail his services as Custom House Agent. In such circumstances, the person playing the role of Custom House Agent has got greater responsibility. The very prescription that one should be conversant with the various procedures including the offences under the Customs Act to act as a Custom House Agent would show that while acting as Custom House Agent, he should not be a cause for violation of those provisions. A CHA cannot be permitted to misuse his position as a CHA by taking advantage of his access to the Department. The grant of licence to a person to act as Custom House Agent is to some extent to assist the Department with the various procedures such as scrutinizing the various documents to be presented in the course of transaction of business for entry and exit of conveyances or the import or export of the goods. In such circumstances, great confidence is reposed in a Custom House Agent... 42. In 2015 (318) ELT 116 (Mad) (Float Glass Centre Vs. Union of India), this court has held as follows:- 56. Generally, time limits prescribed, especially in subordinate legislation, can be taken only to be directory and not mandatory. Otherwise, a subordinate legislati .....

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..... 403 (Sharif Ud Din Vs. Abdul Gani Lone), the Honourable Supreme Court, has held thus:- The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus: The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question is to subserve and its design and the context in which it is enacted. If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of1183 that provision causes seriou .....

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..... time limits prescribed in a sub-ordinate legislation can only be termed as directory, (ii) a provision as to whether it is 'mandatory' or 'directory' would depend upon the object of the enactment and (iii) the consequences of violating the provision must not affect the interest of the other party and would defeat the purpose of the enactment. 46. The Customs Broker Licensing Regulations, 2013 were promulgated in exercise of powers conferred under Sub-Section (2) of Section 146 of the Customs Act,1962. It is only under the regulations, the licence is granted and the regulations also contain various provisions to regulate the affairs of the customs broker including the revocation of the licence. The Regulations contemplates action against the customs broker dehors the provisions under the Customs Act. Therefore, the regulations cannot be treated as sub-ordinate legistlation. Moreover, every implementing authority of any fiscal statute is only performing a public duty. Therefore, it cannot be said that the provision is to be termed as 'directory' just because its adherence is in the nature of performance of a public duty. What is to be considered is the obje .....

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..... e result to cancel the licences of the brokers if they are involved and to impose penalty. The interpretation of a statute must always be to give a logical meaning to the object of the legislation and the aim must be to implement the provisions rather than to defeat it. As laid down by the Apex Court in the judgments relied upon by the learned counsel for the petitioners, when a statue prescribes a thing to be done in a particular manner, it must be performed in such a manner. Also,the use of the language 'shall' in the regulation cannot be termed as 'directory' as one of the consequence of the action is the revocation of the licence and it would also pave way for inaction by the officials breeding corruption. The offences complained in all the cases are breach of Regulation 11, which reads as under:- 11. Obligations of Customs Broker:- A Customs Broker shall- (a) obtain an authorisation from each of the companies, firms or individuals by whom he is for the time being employed as a Customs Broker and produce such authorisation whenever required by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (b) transact .....

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..... including financial transactions in an orderly and itemised manner as may be specified by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; and keep them current; (l) immediately report the loss of licence granted to him to the Commissioner of Customs; (m) discharge his duties as a Customs Broker with utmost speed and efficiency and without any delay; (n) verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information; and (o) inform any change of postal address, telephone number, e-mail etc. to the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be within one month of such change. 50. It is also to be noted that every act of breach by the Broker would entitle the authorities to initiate proceedings from the date of knowledge of the offence. It is only if the time limit is strictly followed, swift action can be initiated against the Customs Brokers and the authorities can also be made accountable. The Regulations only contemp .....

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..... ed till the next working day and not otherwise. (iii) the regulations do not define the word 'offence report' and in the absence of any such definition, it can only be from the date of knowledge of the offence as held by this court in 2014 309 ELT 433 in para 17. (iv) That the power under Regulation 18 and 20 dehors the power under Regulation 19 and the provisions of the Customs Act as evident from the reading of the Regulation 18 and 19. and upon perusal of the letters of the counsel for the petitioner in WP.No.15849/2015, this Court is unable to come to a conclusion that the request to keep the matter in abeyance, pending appeal was a request amounting to waiver of the period under Regulation 20. 53. In the judgment of the Division Bench of this Court in TC(A)No. 159 of2006, it has been held in paragraph 11 as under:- 11. As rightly pointed out by the learned counsel for the assessee placing reliance on the decision reported in 118 ITR 326 (MOTILAL PADAMPAT SUGAR MILLS CO., v. STATE OF U.P.,) it is difficult to find any material which would justifiably enable this Court to affirm the view of the Tribunal that there was an conscious act with knowledge to .....

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..... t provision to relieve what it considers a distress resulting from its operation. (See :The Martin Burn Ltd. v. The Corporation of Calcutta, AIR 1966 SC 529; and Rohitas Kumar Ors. v. Om Prakash Sharma Ors., AIR 2013 SC 30) In view of the above, we are of the candid view that none of the submissions advanced on behalf of the appellants is tenable. Hence, this court is unable to accept the said contention in view of the decision of the Honourable Supreme Court cited above and this court has already upheld the validity of the period of limitation as mandatory. It is only when the provision is strictly adhered to the object can be achieved. Moreover, such an exercise would open the Pandora box. Hence, this court is not inclined to exercise the discretion in favour of the respondents. 57. In view of the above, the impugned proceedings in all the writ petitions are liable to be set aside. In so far as WP.No.8946/15 is concerned, since this court has held that no further proceedings can be initiated under Regulation 20, this court is of the view that there would be no purpose in permitting the respondent to continue the suspension and hence, the impugned order in WP.No.8946/15 .....

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