TMI Blog2016 (12) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... By this application, the applicant seeks implementation of order dated 21/04/2015 wherein the Bench partly had set aside the order of the revocation of the applicant, who is a Custom broker and directed to restore the licence from 01/01/2016. 3. Heard both sides and perused the records. 4. Before we proceed on the record our further observation, few facts needs to be recorded. 4.1 This application came up before the Bench for hearing on 24/10/2016, on which date we were informed by the Departmental Representative that they will seek instructions as to the progress of implementation of our order. The matter was accordingly adjourned to 31/10/2016. On that date also, learned Departmental Representative sought time stating that they would implement the order of the Tribunal or make efforts to get a stay order from the Hon'ble High Court. On his submission, the matter was adjourned to 31/11/2016. 4.2 Today it was submitted that they are moving the Hon'ble High Court by notice of motion seeking to list the matter out of turn and produces us a copy of the said notice of motion. 4.3 On perusal of the records, we find that the Bench by order dated 21/04/2015 came to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Revenue and the Tribunal. While Revenue is relying on the above observation of Hon'ble High Court, it is ignoring following observation of Hon'ble High Court made in the same order in para 8: 8. After hearing Mr. Jetly on this point and perusing the order passed by the Tribunal so also the questions of law, we are not inclined to grant the stay of the order of the Tribunal. The Tribunal has allowed the Appeal of the Respondent. The Tribunal's findings raised substantial questions of law. A particular finding or an observation based on understanding of the Tribunal of a provision of law must not visit the party like the Respondent with adverse consequences. The Tribunal's order can be given effect subject to the pending Appeal by the Revenue in such cases. Ordinarily, this would not require any application before the Tribunal or before this Court. It can be seen that the Hon ble high Court has clearly stated that the Tribunal's order can be given effect subject to the pending appeal of the Revenue. In such cases the Hon'ble High Court further observed that this would not require any application before the Tribunal or before the High Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on 29/09/2015. Despite promises made before the Bench, to mention the matter before Hon'ble High Court, no positive action has been initiated. Today a letter is produced by the learned Special Counsel as received from Shri Pradeep S Jetly, Advocate, who appeared on behalf of the Revenue. The said letter also does not give any indication as to what action has been taken by the Revenue from 29/09/2015 to till date to get the matter listed before the Hon'ble High Court at least for getting a stay order on the order passed by the Tribunal. It seems that the entire exercise of the Revenue from another, with no intention of taking any action. 4.7 It is seen that there is a great apathy in revenue in dealing with cases relations to customs brokers. The Custom Broker Regulations prescribe following time limits: CHALR, 2004 CBLR, 2013 Purpose Specified Time Period 22(1) 20(1) Issuance of Show Cause Notice to the CHA/CB by the Commissioner. Within 90 days from the date of receipt of an offence report. 22(5) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... There is an obvious resistance to providing the data. This creates a suspicion. It is obvious that some Customs Brokers suffer on account of such delays and some get benefit on account of such delays. Some custom broker, who have not committed any serious fraud and who ought not to be punished, get out of work for long periods during which the proceeding are delayed. On the other hand, the nefarious custom brokers, who ought to be punished, get the benefit of the lapses committed on account of delays. In either case, it is bad for the system. It is in this context, the CBEC has issued the circulars dated 8.4.2010. It is not unlikely that many of the delays are deliberate and intended to help the nefarious custom broker or harass the good ones. In this context, it is felt that this data is relevant. In exercise of powers under CESTAT Procedure Rules, 1982, we direct the Revenue to present the data regarding observation of various time limits prescribed under regulations. This data may be given in respect of cases taken up or pending in the Mumbai Customs since the amendment made by Notification No. 30/2010-Cus dated 8.4.2010 till 30.6.2016. The respondents are directed to produce t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25.9.2012 9. MaaKrupa, 11/354 7.7.20111 20.7.2011 14.10.2011 14.10.2011 14.10.2011 4.6.2015 10. Dhakane Co., 11/944 29.9.2011 16.11.2011 16.11.2011 8.2.2013 11. Jeena Co., 11/025 25.11.2011 23.12.2011 21.1.2014 21.1.2014 21.1.2014 25.11.2014 12. OK cargo craft, 11/887 21.3.2011 31.3.2011 8.11.2011 8.11.2011 8.11.2011 Inquiry is still end in 13. SSS Sai Shipping Services Pvt. Ltd., 11/999 9.6.2011 22.6.2011 20.9.2011 20.9.2011 20.9.2011 26.12.2012 14. K.M. Commercial Services Pvt. Ltd., 11/907 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the economic compulsions under which these persons are forced to live in slums or on pavements impart to their occupation the character of a fundamental right. In the instant case the appellant has been out of work for long period of time. In most such cases the licences are suspended as soon as the inquiry starts and remain suspended till the enquiry is completed. The Custom Brokers are deprived of the fundamental right to work for long periods of time. The fundamental right to work is being denied to the appellant due to failure of the Revenue to follow the time limits prescribed in the law. In the 15 cases for which the data has been provided by the revenue, it is seen there are inordinate delays and the Brokers are rendered without work for long periods of time extending upto 5 years and still continuing as the enquiry has not been completed. In the process on the one hand the Custom Broker who are unscrupulous get the advantage of these delays in their defense, the good ones who are not guilty suffer for long periods of time. In both the cases the justice is not delivered. 4.8 It can be seen from the above re-produced data and the findings of the Tribunal tha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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