TMI Blog2022 (4) TMI 1372X X X X Extracts X X X X X X X X Extracts X X X X ..... g corruption. If the CHA prima facie appears to be innocent and honest and there is inordinate and unreasonable delay on the part of the department while investigating the matter and issuing the Show Cause Notice to said CHA, the word shall in Regulation 20(1) has to be treated as mandatory. Per contra when prima facie there is allegation of fraud /mis-representation / suppression or any such omission which has resulted into the alleged offence and the delay beyond 90 days was for the reasons beyond the control of the department that the said word shall has to be treated as directory in nature. From the time chart above, it is clearly apparent that the date of knowledge of Commissioner of Customs (Airport General) about the first report of impugned violations against the appellant was received by him on 23.5.2019. The show cause notice issued by him on 16.8.2019 is well within the said Notification period of 90 days. Once the Show cause Notice is well within the period of 90 days, it is held that learned Counsel has unnecessarily engaged himself arguing about the time being mandatory instead of being directory. The arguments of the appellant on the ground of limitation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4-2022 - DR. MRS RACHNA GUPTA, MEMBER (JUDICIAL) Shri B L Garg, Advocate for the Appellant Shri Mahesh Bhardwaj, Authorised for the Department Representative ORDER The appellants herein are the authorised Customs Broker, of importer M/s. Guru Kripa Overseas, West Patel Nagar, Delhi holder of CB licence No. R-09/DEL/Cus/2010 valid upto 22.2.2020. Later filed Bill of Entry No. 3590163 dated 12.10.2017 through the appellants for clearance of goods imported by them from overseas suppliers M/s. Hongkong My Call Technology Co. Ltd. under MAWB No. 78427064446 dated 8.10.2017 valuing at USD 4337.04 (FOB). The said Bill of Entry during first check was reassessed by loading 100% value for each item declared by the importer. DRI accordingly put the consignment covered under the said Bill of Entry on hold on 12.10.2017. The goods were later examined by the officers of DRI under the examination report of the even date. Based upon the further investigation, search and the statements recorded during investigation and from the documents recovered, the Department alleged that importer (M/.s Guru Kripa) by making incorrect declaration of the quantity, non declaration of some of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Regulation 10 and 11 of CBLR, 2018 by the appellant. Learned Counsel has relied upon the definition of evidence reported in Regulation 17 of CBLR, 2018. 4. Learned Counsel for the appellant has relied on the following decision: 1. Manjunath Cargo Pvt Ltd. Vs Commissioner of Customs, Bangalore [2021 (375) ELT 245 (Tri-Bangalore)]; 2. HSN Shipping Pvt. Ltd. Vs. Commissioner of Customs, Chennai [ 2020 (372) ELT 689 (Mad)]. 5. While submitting on merits, it is mentioned that there was no violation of Regulation 10A and 11E of CBLR, 2018 as has been confirmed by the Adjudicating Authority. The said violation has been held only for want of the authorisation in favour of the appellant from the importer. It is submitted that written authorisation is not at all required. There is no evidence to prove that the Customs Broker has otherwise failed to advise the importer. Findings to this effect are prayed to be set aside. Learned Counsel has relied upon the following decision: 1. Parvath Shipping Agency vs CC, (Gen) Mumbai 2017 (357) ELT 296 (Tri-Mumbai) 6. With respect to the allegation under Regulation 11E, it is submitted that there is no evidence to prove that t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e provisions reads as follows: 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 defence 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. 9. Upon perusal of the above regulation, it can be seen that an independent right is issued to the Commissioner to initiate action de hors the enquiry under other regulations and the Customs Act. The regulations does not only contemplate action against the erring Brokers, but also contemplates timely action. The Hon ble Madras High Court in the case of Kamakhshi Agency vs Commissioner reported as [2001 (129) ELT 29 Mad] has held that no doubt that action is to be initiat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done. 12. Subsequently the Constitution Bench of Hon ble Supreme Court in the year 1965 while setting aside the case of Raza Buland Sugar Co. Ltd. v. The Municipal Board reported as [AIR 1965 SC 895], held that the question whether a particular provision is mandatory or directory, cannot be resolved by laying down any general rule and that it would depend upon the facts of each case. The Court has to consider the purpose for which the provision had been made, its nature, the intention of the legislature in making the provision, the serious general inconvenience or injustice to persons resulting therefrom when the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject as well as other considerations which may arise on the facts of a particular case, including the language of the provision ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... blic without much furthering the object of the enactment, the same should be considered as directory. . 16. Later in the case of Sharif-Ud-Din v. Abdul Gani Lone, reported as [(1980) 1 SCC 403] the Hon ble Supreme Court, has held thus :- 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. ... If the object of a law is to be defeated by non-compliance with it, it has to be regarded as mandatory. But when a provision of law relates to the performance of any public duty and the invalidation of any act done in disregard of that provision causes serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the performance of the duty, such provision should be treated as a directory one. 17. To my considered opinion, outcome of the above decisions is that if the CHA prima facie appears to be innocent and honest and there is inordinate and unreasonable delay on the part of the department while investigating the matter and issuing the Show Cau ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Order-in-Original dated 23.4.2019. Commissioner (Airport) of Customs is the officer under Regulation 20 CBLR, 2013/2018 by virtue of Notification C.No. CCCU(DZ)/Admn/59/2017/8638 Public Notice No. 05/2018 dated 30.03.2018. As already quoted above, period of 90 days in terms of Regulation 20 of CBLR is to recoken from the date of knowledge of Commissioner of Customs. From the time chart above, it is clearly apparent that the date of knowledge of Commissioner of Customs (Airport General) about the first report of impugned violations against the appellant was received by him on 23.5.2019. The show cause notice issued by him on 16.8.2019 is well within the said Notification period of 90 days. Once the Show cuase Notice is well within the period of 90 days, t is held that learned Counsel has unnecessarily engaged himself arguing about the time being mandatory instead of being directory. The arguments of the appellant on the ground of limitation are therefore not sustainable. The case law relied upon by him on this issue is held not applicable to the facts of the present case. 20. Coming to another aspect of Violation of Regulation 10A, 10D, 10E, 10N of CBLR, 2018 (Erstwhile Regul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as filed Bill of Entry in the present case. But the same has been filed on the basis of material given to him by his client. He has expressed his bonafide and denied in-correctness of those documents. Merely because there is evidence on record to falsify the said statement, Customs Broker cannot be held liable for the penal action. Otherwise also, he is held not responsible for verifying the contents of his clients. I draw may support from the decision of Mumbai Bench of this Tribunal in the case of Baraskar Brothers vs Commissioner of Customs (General), Mumbai reported as [2013 (294) ELT 415 (Tri-Mumbai)]. The appellant has acted on the instruction of importer. The said fact has not been disowned by the importer himself. Hence Mistake cannot be fastened upon the CHA. I draw my support from the decision of Transocean Discoverer 534 LLC vs. Commr. of Cus., Visakhapatnam-II reported as [2009 (236) E.L.T. 56 (Tri. - Bang.)] and the decision of Tribunal Mumbai in the case of P.D. Manjrekar vs. Commissioner of Customs, Mumbai reported as [2007 (213) E.L.T. 405 (Tri. - Mumbai)] wherein it was held that once the Bill of Entry filed were given to CHA by their clients and the importer owns ..... X X X X Extracts X X X X X X X X Extracts X X X X
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