TMI Blog2019 (7) TMI 109X X X X Extracts X X X X X X X X Extracts X X X X ..... given by writ petitioner only on that date. The writ petitioner not having submitted its statement of defence to SCN within 30 days time frame under Regulation 17(1), cannot claim the benefit of Regulation 17(5) to have the impugned order quashed. As a matter of judicial discipline, this Court proceeds on the basis that all these time frames have been held to be mandatory. A careful perusal of Regulations 17 and 20 of CBLR 2018 and CBLR 2013 respectively bring into sharp focus that these time limits are sequential for proceedings and they certainly have cascading effect on one another. This principle comes out clearly from a circular issued by the 'Central Board for Excise and Customs' being Circular No.9/2010 dated 08.04.2010. In the instant case, this Court has already held that 90 days from the date of issuance of SCN is when the noticee submits reply within 30 days and in a case like this, when the noticee has not sent the statement of defence / reply to SCN beyond 30 days time frame, 90 days time frame in the regulation if at all can be computed only from the date of reply and if so computed in the instant case, it is within 90 days period prescribed under Regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 17(1) of CBLR 2018 read with Regulation 20(1) of CBLR 2013. (c) In the aforesaid SCN, writ petitioner noticee was inter-alia called upon to show cause as to why the CBL should not be revoked and why security deposited by writ petitioner noticee should not be ordered to be forfeited and as to why penalty should not be imposed under Regulation 18 of CBLR 2018 read with Regulation 22 of CBLR 2013. Vide SCN, writ petitioner was also directed to appear for personal hearing and produce proof / evidence in support of their stand. (d) In response to SCN, writ petitioner noticee sent its reply styled 'Statement of Defence' dated 22.11.2018. On receipt of reply to SCN from the writ petitioner, respondent directed the Assistant Commissioner of Customs to enquire into the same. Assistant Commissioner of Customs embarked upon the said exercise, i.e., enquiry and after conclusion of the enquiry, prepared a report of enquiry after recording his findings and submitted a report dated 21.02.2019. (e) Thereafter, an order dated 23.05.2019 came to be passed by the respondent inter-alia revoking the CBL of the writ petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing this order. Necessary facts have been set out in the light of the trajectory of the hearing wherein it was made clear that the sole and pivotal ground on which the impugned order is assailed is violation of sub-regulation (5) of Regulation 17 of CBLR 2018. In other words, facts set out supra are those which pertain to the aforesaid sole and pivotal ground and other facts touching upon other aspects of the matter have not been set out in great detail, particularly to avoid burdening this order with facts which are not imperative for appreciating this order, besides avoiding prolixity and preventing this order becoming verbose. 7 In the light of the sole and pivotal submission which falls for consideration, this court considers it appropriate to extract entire Regulation 17 of CBLR 2018 which reads as follows : 17. Procedure for revoking license or imposing penalty . - (1)The Principal Commissioner or 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 license or impos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. (7)The Principal Commissioner or Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs Broker, pass such orders as he deems fit either revoking the suspension of the license or revoking the license of the Customs Broker within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-regulation (5) : Provided that no order for revoking the license shall be passed unless an opportunity is given to the Customs Broker to be heard in person by the Principal Commissioner of Customs or Commissioner of Customs, as the case may be. (8)Where in the proceedings under these regulations, the Principal Commissioner of Customs or Commissioner of Customs, as the case may be, comes to a conclusion that the F card holder is guilty of grounds specified in regulation 14 or incapacitated in the meaning of the said regulation, then the Principal Commissioner of Customs or Commissioner of Customs may pass an order imposing penalty as provided in regulation 18: Provided that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 10 In support of the aforesaid contention, learned counsel pressed into service an order made by a Hon'ble Single Judge of this Court dated 22.11.2018 made in W.P.Nos.26923 and 26934 of 2018. A perusal of the order of learned Single Judge reveals that the learned Single Judge, drawing inspiration from a Division Bench judgment of Delhi High Court reported in 2016 (338) ELT 347 (Del) being Impexnet Logistic Vs. Commissioner of Customs (General) as well as another Division Bench decision of this Court made in C.M.A.No.730 of 2016 dated 13.10.2017, had held that various time frames adumbrated in Regulation 20 of CBLR 2013 (Regulation 17 of CBLR 2018 in the instant case) are mandatory and not directory. Therefore, the principle that various sub regulations of Regulation 17 of CBLR 2018 are mandatory and not directory is learned counsel's say. 11 Learned Revenue counsel emphatically submitted that there is well settled litmus test for testing whether a particular rule / regulation is mandatory or directory. It is the further submission of learned Revenue Counsel that Hon'ble Supreme Court has answered this question as to what would be the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r made by Hon'ble Single Judge of this Court, it comes to light that Salem Advocate Bar Association case principle as reiterated by Hon'ble Supreme Court in recent judgments alluded to supra has not been projected before the said Hon'ble Courts. Therefore, Salem Advocate Bar Association principle reiterated by Hon'ble Supreme Court recently in SCG Contracts India Pvt. Ltd . case Ltd. on 12.02.2019 being the law of the land, if applied to test whether time frames adumbrated in Regulations 20 and 17 of CBLR 13 and CBLR 2018 respectively are mandatory, it may become necessary to reconsider the position is learned Revenue counsel's say. The reason is, it is nobody's case that consequences have been provided qua aforesaid sub regulations and the object sought to be achieved by CBLRs is to prescribe an overall time frame from the date of receipt of offence report by prescribing time limits at various stages of SCN. This Court has given its careful and detailed consideration to this stand of Revenue, however as this case can be decided without embarking upon this debate, i.e., even by testing writ petitioner's case on the basis that sub regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the said Rules. The third respondent was appointed as the Inquiry Officer. The petitioner submitted their reply dated 25.04.2018 and appeared before the Inquiry Officer on 14.05.2018.... Therefore, the enquiry report was submitted beyond 90 days period under Regulation 20(5) of CBLR 2013 in that case. (ii) In the aforesaid order, the plea of alternate remedy had not been raised. This comes out clearly from the summation of rival submissions. Therefore, writ petition was not tested on the plea of alternate remedy. 18 To be noted, in the instant case, SCN is dated 14.09.2018 and learned counsel for writ petitioner submitted that SCN was served on writ petitioner on 15.09.2018. However, the reply of writ petitioner, i.e., written statement of defence of writ petitioner was admittedly sent only on 22.11.2018, which is not within 30 days time limit for such reply stipulated in Regulation 20(1) of CBLR 2013 and 17(1) of CBLR 2018. 19 Therefore, 90 days time frame stipulated under Regulation 20(5) of CBLR 2013 can be tested only by taking 22.11.2018 as the reckoning date in this case as reply / statement of defence has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing 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. (underlining made by Court to highlight and supply emphasis) 21 A perusal of the aforesaid paragraph reveals that time frames prescribed under various sub regulations of Regulations 17 and 20 of CBLR 2018 and CBLR 2013 respectively are not time frames in isolation, but are sequential time frames obviously having cascading effect on one another, so that there is prescription of an over all time limit of 9 months. When the time frame of 90 days under sub regulation (5) of Regulation 17 is mandatory, the time frame of 30 days (for reply to SCN) stipulated under sub regulation (1) is also mandatory. When that has been delayed and the matter has progressed, the reckoning dates will automatically re-arrange themselves. 22 Sub Regulation (5), no doubt says that 90 days from the date of issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te remedy plea. There is no disputation before this court that alternate remedy against the impugned order is available to the writ petitioner by way of an appeal to the 'Customs Excise and Service Tax Appellate Tribunal' ('CESTAT' for brevity) under Section 129A(1) of the Customs Act, 1962. 27 Having decided / returned a finding that impugned order is not hit by Regulation 17(5) of CBLR 2018, this court deems it appropriate to relegate the writ petitioner to alternate remedy of appeal before CESTAT as the impugned order may have to be tested on merits which turns heavily on facts and records. 28 With regard to alternate remedy and exercise of writ jurisdiction under Article 226 of the Constitution of India, it has been laid down in a long line of authorities by Hon'ble Supreme Court that exercise of writ jurisdiction for interfering with orders notwithstanding alternate remedy will be only in cases of certain specific exceptions. 29 Though there is a long line of authorities of Hon'ble Supreme Court, this Court is of the view that it will suffice to refer to Satyawati Tondon case being United Bank of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case falling under a defined exception, duly discussed after noticing the relevant law. In financial matters grant of ex parte interim orders can have a deleterious effect and it is not sufficient to say that the aggrieved has the remedy to move for vacating the interim order. Loans by financial institutions are granted from public money generated at the taxpayer's expense. Such loan does not become the property of the person taking the loan, but retains its character of public money given in a fiduciary capacity as entrustment by the public. Timely repayment also ensures liquidity to facilitate loan to another in need, by circulation of the money and cannot be permitted to be blocked by frivolous litigation by those who can afford the luxury of the same. The caution required, as expressed in Satyawati Tondon [ United Bank of India v. Satyawati Tondon , (2010) 8 SCC 110 : (2010) 3 SCC (Civ) 260] , has also not been kept in mind before passing the impugned interim order: (SCC pp. 123-24, para 46) 46 . It must be remembered that stay of an action initiated by the State and/or its agencies/instrumentalities for recovery ..... X X X X Extracts X X X X X X X X Extracts X X X X
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