TMI Blog2016 (12) TMI 758X X X X Extracts X X X X X X X X Extracts X X X X ..... such delays. Suffice to say in such a serious issue needs immediate attention of CBE&C and Chief Commissioner of Customs. As a result of such delay, a number of serious offenders will get the benefit and be left of the hook and go scot free, which is not the intent of law. Similarly, due to the delays, people who are not guilty will continue to suffer the suspension and revocation on account of delays by Revenue due to lack of responsibility. The appeal is allowed on limitation without going into merits of the case - The license which is revoked by the impugned order is restored forthwith and Commissioner of Customs (General), Mumbai is directed to do the needful immediately - decided in favor of CHA-assessee. - C/87322/15-MUM - A/93232/16/CB - Dated:- 18-10-2016 - Shri M.V. Ravindran, Member (Judicial) and Shri Raju, Member (Technical) Ms. Pooja Reddy, Advocate for Appellant Shri Roopam Kapoor, Commissioner (AR) ORDER The appellant, M/s MaaKrupa Forwarders, are in appeal against revocation of Customs Broker license. On an earlier occasion on 15.7.2016, when the matter came up, it was seen that the appellants were largely relying on the delay made by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tection of an offence. The Licensing authority shall take necessary immediate suspension action within fifteen days of the receipt of the report of the investigating authority. A post-decisional hearing shall be granted to the party within fifteen days from the date of his suspension. The Commissioner of Customs concerned shall issue an Adjudication Order, where it is possible to do so, within fifteen days from the date of personal hearing so granted by him. She also highlighted the amendment made in the Custom House Agent Licensing Regulations, 2004 (CHALR) vide Notification No. 30/2010-Cus (NT) dated 8.4.2010 prescribing various time limits. 1.1 It was seen that a number of cases have come before Tribunal where time limits have not been adhered to. It was seen that in the case of Lohia Travels and Cargo - 2016 (331) ELT 614, the Tribunal had identified various regulations prescribing time limits. Para 3 of the order in case reads as under: - 3. In the present appeals, the appellant s main contention is that the procedure stipulated in the CHALR, 2004 and CBLR, 2013 have not been followed by the Commissioner in the proceedings against them. None of the time limits pre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n. Ld AR submitted the following chart of the dates and events and submitted to impress that the delay occurred due to non-cooperation of the appellant: - Hearing dates Action taken 28.12.2012 ------- 23.2.2013 No retraction of statement by Vinesh Chheda and Amit Chheda. So cross-examination was sought. 8.3.2013 ----- 11.3.2013 Cross examination notes and cross examination 30.1.2014 MaaKrupa did not appear for hearing 20.2.2014 Address changed by the CHA so letter was returned 11.3.2014 New address given by M/s MaaKrupa 31.7.2014 Maa Krupa requested adjournment 21.8.2014 Hearing held 4.9.2014 No hearing 1.10.2014 Another hearing was held 31.10.2014 Hearing was held 2.12.2014 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... one through the rival submissions. We find that admittedly the time limits prescribed under the CBLR, 2013 have not been followed. The CBLR, 2013 prescribed the 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) 20(5) Preparation of Report of Inquiry by Deputy/Assistant Commissioner. Within 90 days from the date of issuance of the Show Cause Notice. 22(7) 20(7) Passing of Order by the Commissioner. Within 90 days from the date of submission of the Inquiry Report. TOTAL DURATION 270 DAYS or 9 MONTHS. In the instant case, the following is the time limit of event in the case: - Sr. No. Event Date of occurrence Prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in the case of Chairman, LIC Vs. A. Masilamani (supra). In the said decision, Hon'ble Apex Court has interpreted the dismissal of a disciplinary proceeding under LIC (Staff) Regulation, 1960. In the said case, Hon'ble High Court had interpreted regulation 46(2) of the said Regulation and set aside the proceedings. Regulation 46(2), as stated in the said order, reads as follows: - In case of an appeal against the order imposing any of the penalties specified in Regulation 39, the appellate authority shall consider - (a) Whether the procedure prescribed in these Regulations has been complied with, and if not, whether such non-compliance has resulted in failure of justice; (b) Whether the findings are justified; and (c) Whether the penalty imposed is excessive, adequate or inadequate, and pass orders .. xxxx xxxxxxxxxxx It is seen that Hon'ble High Court had in that case considered delay as one of the contributing factor. It is seen that there is no time limit prescribed under regulation 46(2) (as reproduced in the said decision). In the instant case CBLR, 2013 specifically prescribed time limits under various regulations and therefore the ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pension. It is seen that subsequent to this decision of Hon'ble High Court dated 13.5.2014, the Hon'ble High Court of Delhi in other cases has taken a different view. The same have been discussed in para 4.5 below. 4.4 Ld AR has also relied on the decision of Hon'ble Apex Court in the case of R.S. Saini (supra) . In the said case, the Hon'ble Apex Court held that time limit prescribed by a memorandum of Government of India cannot be held to be mandatory. The said case is distinguishable for the reason that in the instant case, the time limit is not prescribed by Administrative order of the Ministry but by a statutory regulation issued under the authority of Customs Act, 1962.The instant case involves period when time limit have been prescribed by legislation under CBLR, 2013. 4.5 Learned Counsel for the appellant has cited a recent decision of Hon'ble High Court of Delhi in the case of Overseas Air Cargo (supra). In the said case, Hon'ble High Court of Delhi has followed the earlier decision of Hon'ble High Court of Delhi in the case of IndAir Carrier (supra) and held that the time limit prescribed under the CBLR, 2013 are mandatory in natu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aro International Freight System (supra) has observed as follows: 28. 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 contemplate initiation of proceeding by issuance of notice 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 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 by a notific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s usually start on the ground of limitation. There are various decisions which hold that the time limits prescribed under the regulations are not directory but mandatory. There are some decisions otherwise too. In similar circumstances, earlier in the case of Skylark Travel Pvt. Ltd., wherein delay of 4 years had occurred (Order No. M/ 86739/ 16/CB dated 22.03.2016), the Bench had sought data to ascertain if delays are regular or exceptional. The said data was not provided for a period of almost four months. The matter was heard on 23.11.2015, the Bench waited for four months for the data, however order pronounced on 22.03.2016. The order had to be passed without the benefit of the said data. in the said order, the following observation was made: - 8. During the arguments, the issue of required delays in following the various time limits set out in the CHALR was also taken up. For appreciation of facts and circumstances, the learned AR agreed to provide data of the case pending/ under investigation in the Customs House and if there are any delays. However, the said data has not been submitted till date. There is an obvious resistance to providing the data. This creates ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ending 4. Vilas Transport Company, 11/470 9.3.2011 24.3.2011 5. Fairdeal Shipping Agency Pvt. Ltd., 11/091 9.9.2011 19.9.2011 20.11.2014 20.11.2014 22.32016 6. Kamal Clearing Forwarding Pvt. Ltd., 1 1/691 18.8.2011 9.9.2011 15.12.2011 15.12.2011 15.12.2011 15.5.2013 Freight Forwarders, 11/477 30.6.2011 13.72011 9.112011 9.11.2011 9.112011 Inquiry is still pending 8. Hind Ship Airways, 11/672 27.12.2011 31.1.2012 6.7.2012 6.7.2012 6.7.2012 25.9.2012 9. MaaKrupa, 1 1/354 7.72011 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nquiry has not been completed even more than 5 years have been elapsed. The Hon'ble Supreme Court in the case of Olga Tellis Ors vs Bombay Municipal Corporation, 1986 AIR 180, has observed as follows: - The argument which bears on the provisions of Article 21 is elaborated by saying that the eviction of pavement and slum dweller will lead, in a vicious circle, to the deprivation of their employment, their livelihood and, therefore, to the right to life. Our attention is drawn in this behalf to an extract from the judgment of Douglas J in Baksey v. Board of Regents, 347 M.D. 442 (1954) in which the learned Judge said: The right to work I have assumed was the most precious liberty that man possesses. Man has indeed, as much right to work as he has to live, to be free and to property. To work means to eat and it also means to live. The right to live and the right to work are integrated and interdependent and, therefore, if a person is deprived of his job as a result of his eviction from a slum or a pavement, his very right to life is put in jeopardy. It is urged that the economic compulsions under which these persons are forced to live in slums or on pavements impar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
