TMI Blog2016 (12) TMI 1156X X X X Extracts X X X X X X X X Extracts X X X X ..... ommissioner passed the order for revocation of the CB licence on 02.07.2015. The overall period prescribed for the entire proceeding is 9 months or 270 days from the date of receipt of offence report. As the facts discussed above the total period taken for entire proceeding till the date of passing of order is 728 days. The order for revocation was passed beyond the prescribed time limit of 270 days. Therefore the order is not maintainable on limitation itself. As regard the debate that whether the time line prescribed under the regulation is directory or mandatory, we are of the view that in the circumstances that the specific time limit prescribed under the regulation and no power for condoning the delay was provided, the time line prescribe in mandatory. It is a strite law that in a particular act if specific time limit is prescribed for any action to be taken under such law that will prevail even over the provision of limitation Act. The CHALR/CBLR, 2013 have been enacted under the Custom Act 1962. Under no circumstances time limit prescribed under any statutory provision can be relaxed. Therefore the commissioner was bound to insure that the entire preceding should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2013 (erstwhile Regulation 13(a), 13(d), 13(n) and 13(o) of CHALR, 2004). Hence the Licence of CB (CHA) was placed under suspension vide Order No. 10/2013 dated 23.07.2013 and suspension was further continued vide Order No. 20/2013 dated 23.08.2013 under Regulation 19(2) of CBLR (formerly Regulation 20(3) of CHALR 2004), after granting personal hearing to the C.B (CHA) on 22.08.2013. Subsequently enquiry proceedings under Regulation 20 of the CBLR 2013 (erstwhile Regulation 22 of CHALR, 2004), were initiated against the C.B. vide Notice dated 04.10.2013. Accordingly, Article of charges were framed against the Customs Broker for violation of Regulation 11(a), 11(d), 11(m) and 11(n) of CBLR, 2013 (erstwhile Regulation 13 (a), 13 (d), 13(n) and 13(o) of CHA LR 2004), on the allegation that CB (CHA) had not attempted to obtain Authorisation from the Importers, that CB (CHA) has not advised the importer to comply with the provisions of Act and Rules and also failed to inform Customs about the use of dummy IECs, of which he was aware, that the CB (CHA) has displayed utterly irresponsible and behavior and rank inefficiency by allowing his employee to indulge in illegal acts with nefarious ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (v) Ajay Clearing Enterprise Vs. Commissioner of Customs (General) 2016 (336) E.L.T.33 (Bom.) (vi) A Tajudeen Vs. Union of India 2014-TIOL-85-SC-FEMA He further, submits that the entire case was decided on statements of various persons. However, the appellants representative retracted their statement. Therefore only on the basis of statement and that too retracted one it cannot constitute the sole basis to arrive at a finding of guilt. In this support the relied upon the judgement of - (i) A Tajudeen Vs Union of India[2014-TIOL-85-SC-FEMA] With his above submissions, he the prays for order of restoration CB licence of the appellant. 6. On the other hand Shri D.K. Sinha Ld. Assistant Commissioner (AR) appearing on behalf of the revenue reiterates the findings of the impugned order. He further submits that as regard the submission of the Ld. Counsel on limitation, the time limit prescribed in the regulation is directory and not mandatory. Therefore only for non following the time limit prescribed for inquiry under the CBLR 2013 the entire proceeding will not vitiate. The offence on the part of the appellant is very grave in the nature therefore entire proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re reproduced below :- CHALR, 2004 Under the CHALR, 2004 Regulation 20 empowers the Commissioner to suspend or revoke the licence and the procedure which needs to be followed in this regard is found in Regulation 22. For ready reference Regulation 22 is reproduced as under: 22. Procedure for suspending or revoking licence under Regulation 20- (1) The Commissioner of Customs shall issue a notice in writing to the Customs House Agent within ninety days from the date of receipt of offence report, stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said Customs House Agent to submit within thirty days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defence and also to specify in the said statement whether the Customs House Agent desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. Provided that the procedure prescribed in regulation 22 shall not apply in respect of the provisions contained in sub-regulation (2) to regulation 20. (2) The Commissioner of Customs may, on receipt of the written ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of Section 129 of the Act . CBLR, 2013 Regulation 20. Procedure for revoking licence or imposing penalty. (1) The Commissioner of Customs shall issue a notice in writing to the Customs Broker within a period of ninety days from the date of receipt of an offence report, stating the grounds on which it is proposed to revoke the licence or impose penalty requiring the said Customs Broker to submit within thirty days to the Deputy Commissioner of Customs or Assistant Commissioner of Customs nominated by him, a written statement of defense and also to specify in the said statement whether the Customs Broker desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. (2) The Commissioner of Customs may, on receipt of the written statement from the Customs Broker, or where no such statement has been received within the time-limit specified in the notice referred to in sub-regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, to inquire into the grounds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 04 CBLR 2013 Purpose Specified Time Period 22(1) 20(1) Insurance 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 the 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 As per the facts of the present case investigation of the customs case was initiated on 5.12.2012. The date of sequence of the present case are given as under- 15.02.2012 Investigation of customs case was initiated. 14.08.2012 Show Cause Notice under custom issued to various persons. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15 - The presenting officer filed his report. 24.02.2015 - The Appellant filed a detailed reply to the attending officer. 23.04.2015 Inquiry officer filed his report before the commissioner. 18.05.2015 Inquiry report served on the Appellant. 04.06.2015 A detailed reply to the report was filed by the Appellant before the Commissioner. 02.07.2015 The Commissioner, by the impugned order, revoked the CB Licence. From the abovementioned sequence of dates, it can be seen that the offence report was received by the office of the Commissioner on 05.07.2013. Thereafter the Show Cause Notice/Chargesheet was issued to the appellant on 04.10.2013. Thus Show Cause Notice was issued beyond the stipulated time of 90 days which is prescribed time limit under regulation 22(1) / 20(1) of CBLR, 2013. 8. The inquiry officer filed his report on 23.04.2015 i.e almost after 200 days from the date of Notice date 04.10.2013.It is observed that the inquiry officer not only defied the ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissioner of Customs recording his findings on the issue of suspension of CHA license, and for passing of an order by the Commissioner of Customs. Suitable changes have been made in the present time limit of forty five days for reply by CHA to the notice of suspension, sixty days time for representation against the report of AC/DC on the grounds not accepted by CHA, by reducing the time to thirty days in both the cases under the Regulations. 7. This Court has consistently emphasised the mandatory nature of the aforementioned time limits in several of its decisions. These include the decision in Shankar Clearing Forwarding v. C. C. (Import General) 2012 (283) E.L.T. 349 (Del.) = 2012-TIOL-657-HC-DEL-CUS , the order dated 25th April, 2016 passed by this Court in Customs Appeal No. 14/2016 (Commissioner of Customs (General) v. S. K. Logistics) and the order dated 29 th April, 2016 = 2016-TIOL-845-HC-DEL-CUSin W.P.(C) No. 3071/2015 (M/s Sunil Dutt v. Commissioner of Customs (General) New Customs House). The same position has been reiterated by the Madras High Court in Sanco Trans Ltd. v. Commissioner of Customs, Sea Port/Imports, Chennai (2015) 322 E.L.T. 170 (Mad.) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs (Import General) has been apprised of the matter by the Commissioner of Customs (Export) through Order-in-original dated 12.03.2013. This may be practically considered as the offence report. The show cause notice proposing revocation has been issued on 12.07.2013, well beyond the ninety days limit prescribed for the same in regulation 22(1). The inquiry report which is mandated to be completed within ninety days from the date of the show cause notice has been filed only on 27.11.2014, very much beyond the ninety days time limit prescribed for the same. Finally the impugned order has been passed within ninety days from the date of inquiry report. However, the overall time taken were completion of regular proceeding is a period of 23 months, which is much beyond the allowed total duration of nine months. The Hon'ble High Court of Madras in A.M. Ahamed Co. vs. Commissioner of Customs (Imports), Chennal - 2014 (309) ELT 433 (Mad.) = 2014-TIOL-1503-HC-MAD-CUS has held as under: 20. The time limit prescribed in Regulation 22(1) has to be understood in the context of the strict time schedule prescribed in various portions of the Regulations. Regulation 20(2), for i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It was held that it is an accepted fact that the time limit prescribed therein has to be strictly adhered to. The Hon'ble High Court is clear in the finding that the period of limitation prescribed by a rule of procedure cannot be diluted. Hence, we find the original authority's attempt to distinguish the said decision, as not applicable to the present case, is not well founded. Further, his reliance on Madras High Court decision in Hyundai Motors India (supra) is totally misplaced. The Hon'ble High Court in that case was dealing with powers of Government of India to extent the imposition of anti-dumping duty after the expiry period. The Hon'ble High Court was dealing with entirely different set of legal provisions and facts and circumstances. We find the Hon'ble High Court decision in A. M. Ahamed Co. (supra) is directly dealing with CBLR and the legal sanctity of time limit prescribed under the Regulations. As such, we find the order of the lower authority which was issued without adhering to the time schedule in every stage is liable to be set-aside on this ground. 7. Further, we find that the original authority agreed with the appellant's submis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ise and Customs are binding on the departmental officer. In this regard we are of the view that when the board circular which is not even law, is binding on the departmental officer, then why a statutory regulation cannot be binding on the officer. Therefore there is no hesitation in saying that the regulation made under the Act is strictly binding on the departmental officer particularly where no provision is made for condonation of any delay. The Hon ble Supreme Court/High Court time and again held that the time limit prescribed under the Act/Rule must be strictly adhered to. In this regard some of the judgment are referred below:- 1987 (30) E.L.T. 641 (S.C.) MILES INDIA LIMITED Versus ASSISTANT COLLECTOR OF CUSTOMS Refund claim - Limitation - Appellate Tribunal as well as Customs Authorities bound by statutory period of limitation - Appeal dismissed as withdrawn - Recourse to alternative remedy if available, advisable - Section 27(1) of Customs Act, 1962. In view of the above Judgments, it is observed that under no circumstances time limit prescribed under any statutory provision can be relaxed. Therefore the commissioner was bound to insure that the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
