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2015 (7) TMI 881
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....ection 108 of the Customs Act stated that Shri Pandey was using their CHA Licence, the office premises was under the control of Shri. Pandey, they had sent a request to the Customs for inclusion of Shri Pandey as a Director, Shri Devendra Singh and Shri Sanjay Kumar their employees holding Customs passes were working under the control of Shri Surendra Kumar Pandey, whose company M/s. Suprabha Shipping Logistics, was raising CHA bills on the importers. DRI wrote to Commissioner of Customs that change in constitution of appellant company namely M/s. Unison Clearing Pvt. Ltd. is a contravention of CHALR Regulations 2004 and the License was allowed to be used unauthorizedly in violation of Regulation 13(b). In view of the investigations by DRI, the License was suspended by Commissioner on 15.11.2012. After post decisional hearing the suspension was continued vide Order No. 56/2012 dated 7.12.2012, under Regulation 20(3). In appeal, CESTAT revoked the suspension on 29.1.2013. Subsequently, a notice dated 17.05.2013 was issued to the appellant under Regulation 22(1) and the inquiry conducted under Regulation 22 resulted in revocation of the CHA License with forfeiture of security deposit....
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.... that there is nothing wrong in adopting this practice, Ld advocate relied on the judgement of the Tribunal in the case of Shri P.P. Dutta Vs. Commissioner of Customs, New Delhi 2001 (136) ELT 1042 (Tri. Del.). The Ld. Advocate stated that the law in this regard has not changed since the judgment was delivered and there is no violation of Regulations in the methods adopted for raising the bills. 2.2 According to him, there is no violation of Regulation 13(b) because their employees were holding Custom passes. Further authorizations of importers were obtained by them in all cases. He stated that statements relied upon again CHA under Section 108 of the Custom Act cannot be relied upon in proceedings under CHALR. He relied upon Smita International VS Commissioner 2008 (225) ELT 439 (Tri. Mum), Organic Enterprises India Pvt. Ltd. VS Commissioner 2009 (238) ELT (Tri. Chen.), Thakkar Shipping Agencies VS Collector 1994 (69) ELT 90 (Tri.). As regards the judgement of Delhi High Court on this issue in the case of Jasjeet Singh Marwaha VS UOI 2009 (239) ELT 407 (Tri. Del.) he submitted that this judgement holds that a retracted statement can be relied upon only if on examination of evid....
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.... is enough evidence of subletting of CHA. There is no provision for Directors remuneration i.e. Shri Pandey's remuneration, in the accounts. The two pass holders were working under Shri Pandey. In cases of subletting, no direct evidence can be expected and circumstantial evidence can be considered. The cross examination statements are an after thought because the statements recorded originally many years ago were never retracted. Shri Vishal Madan has tried to show that M/s. Suprabha Shipping Logistics were acting as pure agent on their behalf. Shri Vishal Madan did not deny his link with Shri Ramesh local Angadia, regarding transfer of cash, who was arrested under Cofeposa and released by High Court on technical grounds. In the case of P.P. Dutta (Supra) the importers stated that the person concerned was their agent. However, in the present case Shri Pandey is not the agent of importers but is dealing with the CHA i.e. Shri Vishal Madan. The Customs pass holders in their initial statements stated that they are working for Shri Pandey. iv) He also recalled the judgments relied upon by the Commissioner. He distinguished the case law of Manilal Patel (supra) on the ground that....
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....t be construed as imposing a rigid time-limit for the imposition of the order of punishment. In Remington Rand of India Ltd. Vs. Workmen AIR 1968 SC 224 , non-publication of award under the Industrial Disputes Act, 1947, within the period of thirty days would not render the award invalid. Non-publication of award within a period of 30 days does not entail any penalty and, therefore, the provision as to time in section 17(1) is merely directory. 29. In Topline Shoes Ltd. Vs. Corporation Bank (2002) 6 SCC 33, the Supreme Court negative the argument raised that the State Commission constituted under the Consumer Protection Act, 1986 has no power to accept a reply filed beyond a total period of 45 days. It was held that such provision is not mandatory in nature. No penal consequences are prescribed and the period of extension of time 'not exceeding 15 days', does not prescribe any kind of period of limitation. The provision is directory in nature. The provision is more by way of procedure to achieve the object of speedy disposal of such disputes. It is an expression of desirability in strong terms. But it falls short of creating any kind of substantive right in favour of the....
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.... 21 and Garbari Union Coop. Agricultural Credit Society Ltd. Vs. Swapan Kumar Jana (1997) 1 CHN 189). 49. Furthermore, a provision in a statute which is procedural in nature although employs the word 'shall' may not be held to be mandatory if thereby no prejudice is caused (See Raza Buland Sugar Co. Ltd. Vs. Municipal Board, Rampur, AIR 1965 SC 895, State Bank of Patiala Vs. S.K.Sharma (1996) 3 SCC 364, Venkataswamappa Vs. Special Deputy Commissioner (Revenue) (1997) 9 SCC 128 and Rai Vimal Krishna Vs. State of Bihar (2003) 6 SCC 401)." 31. Recently in Delhi Airtech Services Private Limited & another Vs. State of Uttar Pradesh & another (2011) 9 SCC 354, the Supreme Court held to the following effect: "117. In Principles of Statutory Interpretation, 12th Edn., 2010, Justice G.P. Singh, at pp. 389-92 states as follows: "... As approved by the Supreme Court: 'The question as to whether a statute is mandatory or directory depends upon the intent of the legislature and not upon the language in which the intent is clothed. The meaning and intention of the legislature must govern, and these are to be ascertained not only from the phraseology of the provision, b....
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....uence of noncompliance, is the requirement to be regarded as imperative (or mandatory) or forms prescribed by the statute have been regarded as essential to the act or thing regulated by it, and their omission has been held fatal to its validity. In others, such prescriptions have been considered as merely directory, the neglect of them involving nothing more than liability to a penalty, if any were imposed, for breach of the enactment. 'An absolute enactment must be obeyed or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled substantially'. It is impossible to lay down any general rule for determining whether a provision is imperative or directory. 'No universal rule,' said Lord Campbell, L.C. 'can be laid down for the construction of statutes, as to whether mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of Justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.' And Lord Penzance said: 'I believe, as far as any rule is concerned, yo....
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....e directory in nature despite the use of word "shall". We note from the record that both sides have contributed to the delay. Therefore Advocate's plea that time lines cannot be diluted is not acceptable. We find that the time lines laid down in Regulation 22 are meant to quicken the enquiry proceedings and deliver speedy justice. At the same time, the purpose of the inquiry is to examine the role of the CHA in the fraud committed. Therefore, if the time lines not adhered to are considered mandatory and the matter is closed on this basis, the purpose of the Regulations would get defeated and so would the intent of the Legislature. It would render the entire proceedings invalid. Further, since there is no consequence stated in the Regulations for non-adherence to the time periods for conducting the inquiry, the time lines cannot be fatal to the outcome of the inquiry. Keeping the above judgment in mind, we come to the conclusion that the time lines laid down in the Regulations are directory in nature. 4.3 The next bone of contention is admissibility of statements recorded under Section 108 of the Customs Act in the CHALR proceedings. The case of Jasjeet Singh Marwaha (Supra) ....
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.... the license. No consideration is shown for such transfer nor any transfer agreement. The only evidence is that the appellant was receiving fixed amounts per container from Shri Pandey. We find no provision in the Regulations that the CHA should receive payments directly from the importers/exporters for the services rendered. We also find that Section 147 of the Customs Act allows for an agent to work on behalf of the principal. Therefore, if the importers/exporters have contracted an intermediary person for Customs clearance work, no contravention of the CHALR is proved if the CHA is satisfied about the credentials of the importer for whom he is doing the Customs clearance work. In fact in his examination, Shri Pal Singh Lohia stated that Mr. Vishal Madan was introduced to them by Shri Pandey who is looking after their marketing. And the check list in respect of Bills of Entry is filed from his office with the help of his (CHA's) pass holders who are his employees. He also stated that he was compelled to sign statements before DRI. Therefore it is not strictly true to say that Lohia had transferred all the CHA work to Mr Pandey as held by the Commissioner. The statement of Shr....
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....imparting correct information and rendering proper advice to the clients. The charge that the CHA advised the importer to stack thinner material in the front of the container is not supported by the physical examination of the containers nor by any other corroborative evidence. Reliance on the statement of Shri Vishal Madan is also put in question because he had stated in Writ Petition NO. 3951/2012 before the Bombay High Court that his statement was recorded under coercion. Therefore the retraction of statements appear to carry weight due to lack of supporting evidence for the violation of the Regulation. Similarly the charge of violation of Regulation 22(n) which requires the CHA to be efficient is not on a strong footing and cannot be sustained. Except for a statement regarding undervaluation no concrete evidence is forthcoming against the CHA. 5.3 Regulation 19(8) requires the CHA to supervise over the proper conduct of their employees. Here also, we have not come across any act of omission or commission against the Regulations by the CHA's pass holders except the statement stating that they were working under orders of Shri Pandey. We find no substantial violation in th....