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TMI Blog2025 (4) TMI 526X X X X Extracts X X X X X X X X Extracts X X X X ..... exporters by forging 'factory stuffing permissions' to give the appearance that the goods had been subjected to examination and, thus, entitled to claim ineligible drawback of Rs. 49,56,21,314 on shipment declared to be valued at Rs. 5,43,58,38,842. Narrowing down the imputation of misconduct to the facts, proceedings were initiated for breach, thereby, of regulation 10(a), 10(d) and 10(n) of Customs Broker Licensing Regulations, 2018 and, though the enquiry officer did returned a report of none of the charges having been proved, Principal Commissioner of Customs (General) thought it fit to issue a disagreement memo, insofar as the finding on regulation 10(a) and regulation 10(n) of Customs Broker Licensing Regulations, 2018 is concerned, and, holding these to be proved, rained all the provisioned detriments on the customs broker. 3. We have heard Learned Counsel for the appellant and Learned Authorized Representative. 4. We find that, in the instant case, notice was issued on 22nd May 2023 well beyond the 90 days from receipt of offence report stipulated for initiating action. Furthermore, the report dated 28th November 2023 was also submitted beyond the 90 days from the date o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le who are not guilty would continue to suffer the suspension and revocation on account of delay by revenues due to lack of responsibility. The said judgment of the CESTAT reflects a extreme situation and the data which was placed before the Tribunal revealed that inquiries had been pending for more than five years and in this backdrop, the Tribunal commented about the inordinate delay. This is what precisely is to be avoided. The order passed by the CESTAT cannot be said to be erroneous by taking into consideration the enormous delay, reflecting the attitude of the Revenue, which had failed to discharge its duty, causing serious inconvenience to the Customs House Agent, which in any cannot be justified. However, the said principle cannot be accepted as an absolute principle where the delay of 15 days has also been held to be inordinate and the licence came to be restored. We do not propose to deal with these two extremities since we are of the considered view that the midline has to be drawn where the time line may not be construed as so rigid, inflexible and a reasonable deviation is permissible where delay is accounted for and the Revenue would be made accountable in discharge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a public duty and a resultant consequence has not been specifically taken into consideration. The salutary principle, whether statute imposes a public duty and lays down the manner and time within which the duty shall be performed, the injustice or inconvenience resulting from a rigid adherence to the statutory prescription, is a relevant factor for holding such provision only as directory has been completely overlooked. As observed by Justice Denman in Caldow v. Pixell, (1877) 2 CPD 562, "in considering whether the statute is imperative, the balance may be struck between inconvenience or sometime rigidly adhered to, or sometime departure from this direction". In that case, it was held that where a public officer was directed by statute to perform a duty within a specific time the case is established that the provisions are only directory, as already discussed above. There might be reason why such time limits cannot be adhered to and these reasons may be at times attributable to the revenue and some time to the Customs house agent. Strict adherence to the said time limit and not making it even slightly flexible would warrant a situation where even one day deviation from the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contained in Regulation 20 cannot be construed to be mandatory and is held to be directory. As it is already observed above that though the time line framed in the Regulation need to be rigidly applied, fairness would demand that when such time limit is crossed, the period subsequently consumed for completing the inquiry should be justified by giving reasons and the causes on account of which the timelimit was not adhered to. This would ensure that the inquiry proceedings which are initiated are completed expeditiously, are not prolonged and some checks and balances must be ensured. One step by which the unnecessary delays can be curbed is recording of reasons for the delay or non-adherence to this timelimit by the Officer conducting the inquiry and making him accountable for not adhering to the time schedule. These reasons can then be tested to derive a conclusion whether the deviation from the time line prescribed in the Regulation, is "reasonable". This is the only way by which the provisions contained in Regulation 20 can be effectively implemented in the interest of both parties, namely, the Revenue and the Customs House Agent.' setting the tone for, and measure of, evaluati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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