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M/s Masterstroke Freight Forwarders Pvt. Ltd. Versus The Commissioner of Customs (Imports) , The Inquiry Officer/Assistant Commissioner of Customs

2015 (12) TMI 1148 - MADRAS HIGH COURT

Scope of Provisions of CBLR 2013 - Mandatory or Directory - Maintainability of petition Held that:- Writ petitions have been filed, questioning the authority to issue the notice and that the respondent has already predetermined the issue. Though this court is aware of its limitation, while entertaining a writ petition against a notice, the show cause notices in the present cases are clearly predetermining the issue and when the sustainability of the notice is questioned as being barred by law, t .....

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roker 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 consi .....

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imit 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 that the CBLR, 2013 have replaced the CHA Regulations. The CHA regulations did not have any time limit to complete the proceedings. Therefore, by a Circular 09/2010 dated 08.04.2010, the necessity to include a time limit for initiating action was addressed by the Board after field inspection and .....

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following the procedure in Regulation 20 (1), the use of the term 'shall' cannot be termed as 'directory'. Under such circumstances, the rule can only be termed 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. - writ petitions are liable to be set aside - Decided in favour of appellant. - WP. .....

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challenged the show cause notice issued under Regulation 20 of the Customs Brokers Licensing Regulations, 2013 (hereinafter referred as CBLR 2013 or Regulations). In WP.No.8946 of 2015, the Petitioner therein challenged the order of suspension of the licence to operate as a customs broker. 2. The brief facts of the respective cases are as follows: a. WP.No.15849/2015:- The Petitioner was granted a licence to operate as a customs broker after satisfying all the norms. Whileso, action has been ini .....

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ted 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 br .....

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s to why penalty should not be imposed and after enquiry, vide order in Orginal No.24505/2014 dated 28.03.2014, a penalty of 4,00,000/- was imposed. As against the order, an appeal has been preferred before the Tribunal. In the meanwhile, the first respondent has passed the order in original dated 05.06.2014, suspending the license of the petitioner and the same was revoked vide Order in Original No.26931/14, dated 24.06.2014. However, the present impugned notice dated 25.06.2014 has been issued .....

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ons were imported by the importers, viz. M/s.Supreme Trading, M/s.Happy Day Trading and M/s.Zone Impex. Subsequently, a show cause notice was issued on 02.07.2014 and the same are pending adjudication. In the meanwhile, the first respondent has passed the Order in Original dated 27.11.2014, suspending the license of the petitioner and the same was revoked vide Order in Original No.32751/14 dated 23.12.2014. However, the present impugned notice dated 23.12.2014 has been issued under the Regulatio .....

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dly 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 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 date .....

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ndervalued. 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 the regulation 19 of CBLR, 2013. Subsequently after verification, the suspension has been revoked. However, the present impugned notice dated 08. .....

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.H.Enterprises. One E.Jaikumar was authorised to clear the goods on behalf of the petitioner company. In September 2014, the Docks intelligent unit commenced investigations with respect to certain Bill of Entries of the importers which resulted in recovery of undeclared goods,v iz. R-22 gas and Toilet requisites. Alleging that the said E.Jaikumar was not an employee of the petitioner and he has been authorised to verify the antecedents of the importers, the Order in Original dated 19.01.2015 cam .....

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stipulated period, the petitioner has filed the above writ petitions. 3. Refuting the averments of the affidavit filed in support of the above Writ Petition, separate counter affidavits have been filed by the respondents in all the writ petitions and the brief contents of the same are as follows: a. WP.No.15849/2015:- The order of the Mumbai customs commissionerate, dated 02.02.2015, prohibiting the petitioner from operating as a customs broker was received by the respondent on 09.02.2015 and in .....

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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 acti .....

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ce Authorisations/Licenses from DGFT, by giving false declaration, regarding factory premises, machinery to process the Mulberry Raw Silk Yarn and instead of importing the goods, the yarn was sold in high seas. The investigation against the said firm culminated in the issue of SCN No.DRI/SRU/INV-4/2010 dated 16.07.2012, demanding duty, penalty and proposing confiscation. Statement of R.Natarajan, Manager of the petitioner was obtained on 13.07.2010 and the statement of Kalpesh Bababbhai Patel, P .....

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of the CBLR. The time limit is only directory and not mandatory and more revenue loss would occur if they are permitted to operate and the writ petition is also liable to be dismissed as it is premature and the petitioner ought to be directed to participate in the enquiry. c. WP.No.3375/2015:- The writ petition is premature, as it is only against a show cause notice. The petitioner in collusion with the importers have smuggled gold, imported cigarettes and R-22 Gas. Statements, by the DRI, Chen .....

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DRI was received by the respondent on 25.09.2014 and the notice has been issued on 23.12.2014 and hence, the same is within the time limit. In any case, the time limit prescribed is directory and not mandatory. Under the above circumstances, this Writ Petition is liable to be dismissed. d. WP.No.16283/2015:- The petitioner, a 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 .....

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s 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 t .....

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International, Chennai by mis-declartion, description, value, Retail Sale Price and evaded duty during the period April 2011 to September 2013. A show cause notice dated 03.03.2014 was issued under Sections 112 (a) and 114AA of the Customs Act,1962. The petitioner have permitted middlemen Ramadass and 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 giv .....

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only on 23.10.2014, the notice under Regulation 20 dated 23.12.2014 is well within time. The date of show cause notice, proposing to take action for the offense is irrelevant and only the date of receipt of the offence report is relevant and the Petitioner has violated the role entrusted to them as CHA and therefore they cannot be permitted to misuse the licence and hence, the Writ Petition is liable to be dismissed. f. WP.Nos.8946/2015 and 17059/2015:- The petitioner company, who holds a Custo .....

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m 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 Regul .....

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ry appeal. The retention of ID card is of no consequence as the card is employer specific in terms of Regulation 17(1) of CBLR2013. If the Saturdays, Sundays and national holidays are excluded, the impugned notice is in time and therefore both the writ petitions have to be dismissed. 4. The learned counsel for the Petitioner, in W.P.Nos.15849, 3374 and 3375 of 2015, has contended that the impugned notice under Regulation 20 has been issued, beyond the statutory period of 90 days, which is mandat .....

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.07.2014 with a copy marked to the petitioner was served in July 2014 itself and hence, the contention that the commission of the offence came to the knowledge of the respondent only on 25.09.2014 is untenable. The Proceedings initiated by DRI is still pending, in so far as WP.No.3375/15 is concerned and therefore, the present proceedings are premature. The learned counsel further submitted that the impugned proceedings also prejudges the issue and therefore, it is liable to be set aside. The le .....

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r of Customs Vs. A.M.Ahmed & CO.), 2014 (308) ELT 410 (Bom) (GAC Shipping Vs. Union of India) , W.P No 30884/13 (order dated 19.08.2014), 2014-309-ELT-443-Madras (A.M.Ahamed & CO Vs. Commissioner of Customs, Chennai), W.P No 21941/14 (Bharat Marine Co. Vs. Commissioner of Customs) dated 15.09.2015, 2011 (266) ELT 422 SC (Oryx Fisheries Private ltd Vs. Unino of India) and 2007 (207) ELT 168 SC (Siemens Ltd Vs. State of Maharashtra) . 5. The learned counsel for the petitioners in WP.Nos.16 .....

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3.12.2014 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 o .....

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The identity card unless surrendered is valid. The Docks intelligence report was sent on 27.10.2014 to the 1st respondent and the licence was suspended by an interim order on 19.01.2015. After enquiry, the final orders were passed, suspending the license on 26.02.2015. A mere perusal of the order would disclose that the respondent has proceeded on prejudged mind. Even before initiating the enquiry, he has concluded that the offence has been committed by the petitioners and therefore, the contin .....

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e learned counsel also contended that whenever a notice is issued without jurisdiction, the writ petition under Article 226 is maintainable. The learned counsel further contended that when the law requires a particular thing to be done in a particular manner, it has to be done in the same manner. The learned counsel submitted that when further proceedings are barred in law, there would be no purpose in continuation of the order of suspension. It was also further contended that the petitioner was .....

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88 and 7189/2015 (order dated 11.6.2015) reported in2015-TIOL-1524-HC-MAD-CUS, 2014 309 ELT 443 (A.H.Ahamed & Co. Vs. 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 .....

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ed 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. The learned ASGI also contended that the petitioners have permitted a third party to act on their behalf and just because he has an identity card, the same shall not absolve the petit .....

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ASGI relied upon the judgment reported in 1998 5 SCC 749 (Nepa Agency Vs Union of India and Others) and the judgment in W.P.Nos.11683,11684, 14567 and 14568 of 2014 (order dated 25.8.2014). 8. The learned standing counsel Mr.K.Mohanamurali appearing for the respondents in WP.Nos.15849, 3474 and 16283/2015, contended that the petitioners have violated the provisions of the customs Act and CBLR, 2013 and the same is evident from the voluntary statements of the persons involved in the transaction. .....

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mbai. The learned counsel, in so far as WP.No.3374/15 is concerned, contended that instead of importing the goods, the same was sold in high seas and therefore, the provisions of Advance Authorisation Scheme have been violated. The learned counsel also contended that if the Saturdays, Sundays and national holidays are excluded, the notice would be in time. The learned counsel, in so far as WP.No.16283/15 is concerned , contended that the goods were misdescribed and undervalued. It is also conten .....

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), 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 .....

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it is an independent provision enabling the commissioner to initiate enquiry. The learned counsel further submitted that the offence report was received on 25.09.2014 and the impugned proceedings have been issued on 23.12.2014. Hence the same is well within the period of limitation. The learned counsel also relied upon the judgment reported in 1997 9 SAC 132 (Mohan Singh Vs. IAAI) to contend that the provision is only directory. 10. The learned standing counsel Mr.V.Sundareshwaran, appearing for .....

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ion. The learned counsel also contended that the show cause notice issued by the DRI cannot be treated as an offence report and hence, the present action taken on 23.12.2014 after the receipt of the offense report on 23.10.2014 is well within time. The learned counsel also contended that the writ petition is premature and not maintainable and relied upon the judgments in 1952 SC 181 (Dattatraya Moreshwar Vs. The State of Bombay and others), AIR 1965 SC 895 (Raza Buland Sugar Co. Ltd Vs. Municipa .....

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is of the opinion that the following points arise for consideration for disposal of these Writ Petitions:- (a) Whether the writ petitions challenging the show cause notice are maintaintable. (b) Whether the period of 90 days prescribed in Regulation 20(1) of CBLR,2013 are 'directory' or '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 b .....

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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 under:- "10. Although ordinarily a .....

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ein has to be considered from a different angle, viz. when a notice is issued with premeditation, a writ petition would be maintainable. In such an event, even if the courts direct the statutory authority to hear the matter afresh, ordinarily such hearing would not yield any fruitful purpose (See K.I.Shephard and others Vs. Union of India and others (1987-4-SCC-431:AIR-1988-SC-686). It is evident in the instant case that the respondent has clearly made up its mind. It explicitly said so both in .....

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ience that once a decision has been taken, there is a tendency to uphold it and a representation may not really yield any fruitful purpose." 12. A bare perusal of the order impugned before the High Court as also the statements made before us in the counter affidavit filed by the respondents, we are satisfied that the statutory authority has already applied its mind and has formed an opinion as regards the liability or otherwise of the appellant. If in passing the order the respondent has al .....

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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 .....

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upra), cited by the respondent's counsel, it has been held that at the stage of show cause notice, a writ petition should not be entertained where such show cause ntice is not without jurisdiction. It was held that the contentions in the show cause notice should be accepted as true and after the petitioner submits its reply thereto, the adjudicating authority would decide the matter. It was also held that the High Court or the Supreme Court should be approached only after exhausting the reme .....

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ioning a notice to show cause unless the same inter alia appears to have been without jurisdiction, when the notice is issued with premeditation. 23. Following the judgements of the Supreme Court in Oryx Fisheries case (supra), Siemens Ltd's case (supra) and M/s.Rajam Industries Ltd's case (supra), we therefore set aside the impugned show cause notice issued by the respondent with a direction to the respondent to issue a fresh show cause notice clearly indicating the issues on which prim .....

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orting material apart from personal hearing (if sought by the petitioner) and then pass a reasoned order in accordance with law." 18. This court, in order dated 15.09.2014 made in W.P 21941 of 2014, has held as under:- "6. In the light of the categorical assertions and findings, I do not think that any useful purpose would be served in asking the petitioner to submit a reply to the show cause notice. At the stage of show cause notice, the first respondent should only have an open mind. .....

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ct, 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 content .....

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se, the emphasized portion contained (cited supra) in the impugned show cause notice, would clearly indicate that the respondent has predetermined the issue. This Court would have appreciated the respondent if she could have added atleast the words, prima facie before the sentence starting it was concluded that the Customs Broker failed to. Therefore, as rightly contended by the learned counsel for the petitioner that from a reading of the impugned show cause notice, an overall impression one ge .....

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f the obligations cast upon them under the Regulations as well as committal of professional mis-conduct by the petitioner and therefore, on this ground, the impugned show cause is liable to be set aside." 20. In 2007 218 ELT 647 (Union of India Vs. Vicco Laboratories), it has been held as under:- "30. Normally, the writ court should not interfere at the stage of issuance of show cause notice by the authorities. In such a case, the parties get ample opportunity to put forth their conten .....

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se of process of law, certainly in that case, the 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 r .....

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ed 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 variations which in no way was relatable to any different test. 34. When the factual scenario is considered in the background of the legal principles set out above, the inevitable conclusion is that the appeal is sans merit, deserves dismissal which we direct. Costs m .....

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ound of alternative remedy. In the present cases, the writ petitions have been filed, questioning the authority to issue the notice and that the respondent has already predetermined the issue. Though this court is aware of its limitation, while entertaining a writ petition against a notice, the show cause notices in the present cases are clearly predetermining the issue and when the sustainability of the notice is questioned as being barred by law, this court is of the view that directing the pe .....

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pex Court reported in 321 ITR 362 (ASST. CIT v. HOTEL BLUE MOON). In considering the failure of the Assessing Officer in issuing notice under Section 143(2), in respect of block assessment, the Apex Court held that failure to issue notice under Section 143(2) would be fatal to the assumption of jurisdiction. If an assessment is to be completed under Section 143(3) read with Section 158 BC, notice under Section 143(2) should be issued within one year from the date of filing of the block return. T .....

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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 notic .....

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1 ITR 362 (ASST. CIT v. HOTEL BLUE MOON), both on points of law as well as on the facts of the present case." 24. In 2014 309 ELT 443 Mad (A.H.Ahamed & Co. Vs. Commissioner of Customs (Imports)chennai) it has been held as follows:- "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 .....

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e while passing the Impugned Order in W.P.No.30884 of 2013 on 19.08.2014 in Paragraph Nos. 25 to 28 had observed the following and resultantly allowed the Writ Petition without costs by setting aside the Impugned Order. "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 f the respondents that the time limit prescribed in Regulation 22(1) need not be strict .....

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Act 1962 with the Settlement Commission. Paragraph 6.2 of the order of the Settlement Commission, relied upon by the petitioner in his affidavit reads as follows:- "The Bench observes that the applicant has made a true and full disclosure 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 i .....

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dent 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 has failed to take note of, is the fact that the revocation of licence now .....

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titioner was granted License by the Chennai Customs and where it operates as per guidelines issued by the Board through its Circular No. 09/2010 dated 08.4.2010. The Commissioner of Customs, Tuticorin through Letter dated 06.09.2012 forwarded the case to the 1st Appellant/Commissioner of Customs, Chennai, the Licensing Authority to initiate further action against the Customs Broker for revocation of License under Regulation 22 along with his report and enclosure of documents. Only, on the basis .....

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(Hargovind Das K. Joshi Vs. Collector of Customs), it has been held as under:- "3. We are of the view that insofar as the order directing confiscation of the goods is concerned, it is unassailable in facts or in law. So also the order levying penalty is justified by facts and warranted by law. There is, however, substance in the last contention urged on behalf of counsel for the appellants. The Collector of Customs has passed an order for absolute confiscation of the imported goods without .....

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ho 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 o .....

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matter be remitted to the Collector of Customs for this limited purpose to this limited extent as to whether or not to give an option to the importers (appellants) to redeem the confiscated goods on payment of such fine as may be considered appropriate by him in lieu of confiscation. It will be open to the concerned officer to take a decision one way or the other in accordance with law as is considered appropriate in the circumstances of the case after hearing the appellants. We have no doubt t .....

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instruments, apparatus and appliances, as well as parts (whether finished or not) or raw materials for the manufacture of aforesaid items and their parts, required for renovation or modernisation of a fertiliser plant, and spare parts, other raw materials (including semi-finished material) or consumables stores, essential for maintenance of the fertilizer plant mentioned above. Now, the goods in question are exempt from duty wholly or partially, in exercise of the powers conferred under Section .....

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condition subject to which exemption from duty was granted had been violated. On the other hand, it is the case of the DRI that this issue has to be adjudicated upon. As per Section 125 of the Customs Act, if the goods are not prohibited, then the adjudicating officer shall give to the owner of the goods an option to pay in lieu of confiscation, such fine as the officer thinks it fit. It is only when it is a prohibited good that the officer has the discretion and it is open to him not to give t .....

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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 pro .....

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what the police alone is authorised to decide'. There is nothing in the Act to indicate such a narrow construction of the word 'superintendence'. Nothing was pointed out to us to put a narrow construction on this general power of superintendence conferred under the Act on the State Government and there is no justification for limiting the broad spectrum of power comprehended in power of superintendence. Accordingly superintendence would comprehend the power to direct further investig .....

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n to carry on further investigation even after a report under s. 173(2) is submitted to Court. But if State Government has otherwise power to direct further investigation it is neither curtailed, limited nor denied by s. 173(8), more so, when the State Government directs an officer superior in rank to an officer in charge of police station thereby enjoying all powers of an officer in charge of a police station to further 33 investigate the case. Such a situation would be covered by the combined .....

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its being done in some other manner (see State of 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 op .....

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ted 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 of the aforementioned principles thus: "A general Act must yield to a special Act dealing with a specific subject-matter and tha if an Act directs a thing to be done in a particular way, it shall be deemed to have prohibited the doing of .....

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aw when the scheme of the Act and the Rules prescribed thereunder contemplates that a specific act should be done in a particular manner, it has to be done only in that manner and in no other way. It is also settled in law, when the disputed questions of facts require evidence and a remedy has been provided, this court under Article 226 should not venture to decide such disputed questions of facts." 31. In AIR 1999 SC 1281 (Babu Verghese and others Vs. Bar Council of Kerala), it has been he .....

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t be done in that way or not at all." 32. In 2014 310 ELT 673 ((The Commissioner of customs, Chennai Vs. CESTAT and others), it has been held as under:- "25. As per the notification and instruction dated 20.01.2014, time limit has been prescribed in respect of the procedure contemplated under Regulation 22 and as per sub-regulation (1) of Regulation 22, the Commissioner of Customs shall issue a notice in writing to CHA within 90 days from the date of receipt of offence report, stating .....

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e 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 .....

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tory and not mandatory. 34. In Dattatraya Moreshwar Vs. The State of Bombay and others (AIR-1952-SC-181), it has been observed that law which creates public duties is directory, but if it confers private rights, it is mandatory. Relevant passage is quoted below:- "It is well settled that generally speaking the provisions of the statute creating public duties are directory and those conferring private rights are imperative. When the provision of a statute relate to the performance of a publi .....

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Rampur) and AIR-1975-SC-2190 (State of Mysore Vs. V.K.Kangan), the Honourable Supreme Court held as under:- "as to whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the law maker and that has tobe gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other." 36. The Honourable Supreme Court in 2003-8-SCC-498 .....

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igarh, has observed as under:- "The provisions of the statute and circular are required to be examined, as to when a provision of a statute is to be treated as mandatory or directory. It is well settled that the use of expression 'shall' or '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 .....

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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, whatever other consequences may occur. But, .....

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directory and not mandatory. Otherwise, a subordinate legislation may even destroy the Parent legislation, by default. 57. In Raza Buland Sugar Co. Ltd v. The Municipal Board [AIR 1965 SC 895], a Constitution Bench of the Supreme Court held that the question whether a particular provision is mandatory or directory, cannot be resolved by laying down any general rule and that it would depend upon the facts of each case. The Court has to consider the purpose for which the provision had been made, i .....

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of India [2005 (6) SCC 344]. While doing so, the Supreme Court pointed out therein that our laws on procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decision should not be reached behind their back, that proceedings that affect their lives and properties should not continue in their absence and that they should not be precluded from participating in them. 58. In Sharif-Ud-Din vs. Abdul Gani Lone [AIR 1980 SC 303], the Supreme .....

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ect 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 stipul .....

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Court has held thus:- "If the object of the enactment is defeated by holding the same directory, it should be construed as mandatory whereas if by holding it mandatory serious general inconvenience will be created to innocent persons of general public without much furthering the object of the enactment, the same should be considered as directoryas to whether a provision is mandatory, would in the ultimate analysis depend upon the intent of the law maker and that has to be gathered not only .....

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quiring statutory functioning to perform a statutory function within the prescribed time to be considered as directory." 41. In RC.No.4 of 1997 (order dated 12.10.2000) (Sri Kamatchi Agencies Vs. Commissioner of Customs, Chennai), this Court has elaborately discussed the role of CHA/Customs Broker in the clearance of goods for import/export, which reads as under:- "The very purpose of granting a licence to a person to act as Custom House Agent is for transacting any business relating t .....

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d intent. On a reading of the Regulations relating to the grant of licence to act as Custom House Agent, it is seen that while Custom House Agent should be in a position to act as agent for the transaction of any business relating to the entry or departure of conveyance or the import or export of goods at any customs station, he should also ensure that he does not act as an Agent for carrying on certain illegal activities of any of the persons who avail his services as Custom House Agent. In suc .....

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o 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 l .....

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e. The Court has to consider the purpose for which the provision had been made, its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting therefrom when the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject as well as other considerations which may arise on the facts of a particular case, including the language of the provision. The said .....

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in them. 58. In Sharif-Ud-Din vs. Abdul Gani Lone [AIR 1980 SC 303], the Supreme Court indicated that the question whether a provision of law is mandatory or not depends upon its language, the context in which it is enacted and its object. The Court made an important observation, which will resolve the problem for us and hence it is extracted as follows:- "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 .....

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ctory one." 43. In 1980-1-SCC-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 .....

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o 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 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. Where however, a provision of law prescribes that a certain act has to be done in a .....

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n, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow." 44. In 1998-7-SCC-123 (N.Balakrishnan Vs. M.Krishnamurthy), it has been held as under:- "9. It is axiomatic that condonation of delay is a matte .....

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icient it is the result of positive exercise of discretion and normally the superior court should not disturb such finding, much less in reversional jurisdiction, unless the exercise of discretion was on whole untenable grounds or arbitrary or perverse. But it is a different matter when the first cut refuses to condone the dela. In such cases, the superior cut would be free to consider the cause shown for the delay afresh and it is open to such superior court to come to its own finding even untr .....

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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 .....

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itions and the procedure are contemplated under Regulation 20. Before, deciding the question as to whether the time limit prescribed is 'directory' or 'mandatory', it is relevant to quote the Regulation 20 of CBLR, 2013 as under:- "Regulation 20. Procedure for revoking licence or imposing penalty:- (1) The Commissioner of Customs shall issue a notice in writing to the Customs Broker witin a period of ninety days from the date of receipt of an offence report, stating the grou .....

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at an independent right is issued to the Commissioner to initiate action dehors the enquiry under other Regulations and the Customs Act. The regulations does not only contemplate action against the erring Brokers but also contemplates timely action. No doubt that action is to be initiated against the erring brokers as laid down by this Court in the case of Kamatchi Agencies cited supra, but the same has to be in strict compliance with the provisions. The law of limitation is common to both the p .....

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be curbed at the earliest point by revoking the licence,(c) unless a time limit is prescribed, action would not be initiated. 49. The purpose for which such 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 i .....

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he 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 business in the Customs Station either personally or through an employee duly appr .....

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of Customs or Assistant Commissioner of Customs, as the case may be; (e) exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage; (f) not withhold information contained in any order, instruction or public notice relating to clearance of cargo or baggage issued by the Commissioner of Customs, from a client who is entitled to such information; (g) promptly pay over to the Government, whe .....

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ed by the proper officer; (i) not attempt to influence the conduct of any official of the Customs Station in any matter pending before such official or his subordinates by the use of threat, false accusation, duress or the offer of any special inducement or promise of advantage or by the bestowing of any gift or favour or other thing of value; (j) not refuse access to, conceal, remove or destroy the whole or any part of any book, paper or other record, relating to his transactions as a Customs B .....

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t 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 .....

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within 90 days. While, making out a prima facie case, the respondents ought to have, without any shadow of doubt, treated the word 'shall' in Regulation 11 as 'mandatory' and not 'directory'. Therefore, 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 that the CBLR, 2013 have replaced the CH .....

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ity to prescribe a period, the Central Board, the statutory authority had included the same in the Regulations itself, when they were brought into force. Therefore, when a time limit is prescribed in Regulations, which empowers action under Regulation 18 by following the procedure in Regulation 20 (1), the use of the term 'shall' cannot be termed as 'directory'. Under such circumstances, the rule can only be termed as 'Mandatory'. 51. Point (c):- In all the cases, the imp .....

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s of the considered view that the above objections are unsustainable for the following reasons viz. (i) the statute does not prescribe that the period to be reckoned are only the working days. (ii) such an interpretation is applicable only in cases where the last date falls on a holiday and the time can be extended 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 d .....

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e 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 t .....

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bunal's reasoning." 54. From the above judgment, what can be derived is that the waiver must be specific and the person must have knowledge about the consequences of such waiver. In the present case, there is no waiver either express or by implication. 55. The show cause notices relating to offences in WP.Nos.3375 and 12401/15 were first issued on 02.07.2014 by DRI and a copy was also marked to the respondent. Based on the same, the Commissioner has appointed the Additional Commissioner .....

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in 1998 (7) SCC 123. The Hon'ble Supreme Court in the Judgment reported in 2013 (10) SCC 765 has held thus:- "It is a settled legal proposition that law of limitation may harshly affect a particular party, but it has to be applied with all its rigour when the statute so prescribes. The Court has no power to extend the period of limitation on equitable grounds. The statutory provision may cause hardship or inconvenience to a particular party but the Court has no choice, but to enforce it .....

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