TMI Blog2019 (10) TMI 1331X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Customs (Airport and General), NCH, New Delhi vide which the appellant's Customs Broker Licence has been cancelled, the security deposit has been forfeited and penalty has been imposed upon him. 2. The relevant factual matrix for the purpose is that an information was received in the office of D.R.I. indicating that Shri Ramesh Wadra and Shri Sanjeev Maggu both residents of B-Block, Sushantlok, Phase-1, Gurugram were engaged in evasion of Customs duty by way of diverting the goods stored in Customs Bonded Warehouse, into domestic market, without payment of Customs duty. The information further indicated that documents were forged/fabricated to show the re-export of warehoused goods. These illegal acts were committed by both these persons by creating following four fictitious firms with IECs in their names :- (i) M/s. Accturists Overseas (OPC) Pvt. Ltd. (IEC - 0517503581) (ii) M/s. Spark Exports (IEC - 0516517803) (iii) M/s. Shree Shyam Enterprises (IEC - 0516966839) (iv) M/s. Horrens Exim (IEC - 0516516299) 2.1 Not only this, they had also obtained bonded warehouses in the names of their employees having fictitious residential address ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has to be completed within the period of 90 days, as has been mentioned in the said Regulation. While praying for accepting the said order for this appeal, that the order under challenge is prayed to be set aside. Appeal is prayed to be allowed. 5. While rebutting these arguments, it is submitted on behalf of the Department that the word issued used in Regulation 20(1) of CBLR has wrongly been construed to mean served . It is impressed upon that word issued , served and given have been used in different conditions in Customs Act, 1962 and hence, these cannot be considered as same/synonyms nor can these be interchangeable. It is submitted that the notice in the present case was admittedly issued within 90 days. It is the service thereof that was beyond a period of 90 days, which cannot be the basis for holding show cause notice as barred by time. Otherwise also time-limit of the Regulation 20(1) cannot be considered as mandatory. Department has relied upon the decision of Hon ble Supreme Court in the case of K.M. Ganatra Co. reported in 2016 (332) E.L.T. 15 (S.C.) impressing upon the important and crucial role of the CHA, who is supposed to safeguard the interest ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the statute gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words. But unless there is a genus which can be comprehended from the preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specific words. 7.2 In another case titled as Amar Chandra Chakraborty v. Collector of Excise, Govt. of Tripura Ors. reported in AIR 1972 S.C. 1863 Hon ble Apex Court has observed that when there is no intention in the Act that the general words were intended to receive the wide meaning, the same could not be construed in any limited sense. 7.3 Both these adjudications make it clear that while interpreting a word in a statute the intention of the Legislature i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ance has to precede the Event of service of notice. 7.6 Above is a procedure prescribed under Customs Act, 1962 and may not be pari materia to the procedures prescribed in other Acts. A particular Act passed by Parliament is an independent Act with respect to the procedure prescribed therein. Further the General Clauses Act also gets applied only when the procedure is not specified in that particular Act. 7.7 Further, I observe that Section 28(a) of the Customs Act specifically uses words served . It reads as follows :- (a) the proper officer shall, within (two years) from the relevant date serve notice on the person chargeable with the duty or interest which has not been so levied (or paid) or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; 7.8 Section 18 of the Customs Act also envisages that the proper officer shall serve the notice . As per Section 110(2) thereof the word used is notice is given . Whereas, Regulation 20(1) of CBLR, 2013/2018 of the Customs Act prescribes that Commissioner shall issue notice. 8. The above perusal abo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be given a logical meaning. It must implement the above objectives rather than to defeat it. 10. In the present case, cancellation of CHA Licence is in issue. Under the Customs Act CHA is an important link between the Customs Department and the importer or exporter as the case may be. 10.1 The very purpose of granting a licence to a person to act as Customs House Agent is for transacting any business relating to the entry or departure of conveyance or the import or export of goods at any Customs station. On a reading of the Regulations relating to the grant of licence to act as Customs House Agent, it is seen that while Customs 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 Customs House Agent. In such circumstances, the person playing the role of Customs House Agent has got greater responsibility. The very prescription that one should be conversant with the various procedures includ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present case because in the said case Section 18(2)(a) of the Wealth Tax Act was in question, which deals with penalty for failure to furnish a return to comply with notices and concealment of assets. Regulation 20(1) CBLR, 2013 fixes two separate time-limits where period of 90 days is restricted to issuance and period of 30 days reckons from date of receipt. This is the differentiating fact than that of Kundan Lal Bihari (supra) case. Hence, the Legislature cannot intend while fixing a time-limit upon Customs Commissionerate to be mandatory when the non-compliance thereof amounts to protect an illegal activity of the CHA/CB. 13.1 The argument that use of word shall in the impugned provision makes the provision mandatory is also not acceptable in view of decision of Hon ble Supreme Court in Sharif-Ud-Din v. Abdul Gani Lone cited as (1980) 1 SCC 403, which held as under :- 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 deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t in the case of Collector of Central Excise v. M.M. Rubber Company reported in 1991 (55) E.L.T. 289 as relied upon in the case of M/s. R.P. Cargo Handling Services (supra), is also opined not applicable to the facts and circumstances of the present case, because in that case Section 35(e) of the Central Excise Act, which gives right of appeal to the aggrieved assessee from an order passed to its prejudiced was considered. The intention of said particular provision the Hon ble Apex Court held that for seeking the remedy of appeal, the limitation starts from the date on which the order was communicated to the affected party. Because it is thereafter only the said party will have reasonable opportunity of knowing of passing of the order and the contents thereof. As already discussed above, it is not so in Regulation 20(1) CBLR, 2013. 14. As we have already discussed about the cardinal rule of interpretation that such meaning should not be assigned to any word or phrase or to the provision, as such, of the statute, as may likely to lead to absurd results, I divert to the merits of the present case. The order under challenge has discussed the lapses and violations on behalf of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egulation 20 cannot be construed to be mandatory and that it is directory in nature. 16. In view of the entire above discussion, I do not agree with the findings of the Co-ordinate Bench of this Tribunal in R.P. Cargo Handling Services (supra) case. 17. I hold that the show cause notice by the Commissioner of Customs under Regulation 20(1) of CBLR, was to be issued within the period of 90 days of receiving the offence report, and that the provisions do not intent for it to be served also within the said 90 days. Otherwise also the provision of statute has to be taken as directory when there is no apparent and intentional delay on part of the Department rather the noticee has committed the illegal act in violation of the provisions of the Act. 18. From the entire above discussion what has been concluded is that the event of issuance of notice is mutually exclusive to the event of service of notice and that the two cannot be equated as one unless and until there is an apparent intention of the Legislative Provision. Issuance of notice has always to precede the service thereof. The requirement of Regulation 20(1) of CBLR, 2013 is that the competent authority should issue the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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