TaxTMI 
TaxTMI 
2016 (12) TMI 758
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.... the said Circular, following para 7.1 & 7.2 read as: - "7.1. The present procedure prescribed for completion of regular suspension proceedings takes a long time since it involves inquiry proceedings, and there is no time limit prescribed for completion of such proceedings. Hence, it has been decided by the Board to prescribe an overall time limit of nine months from the date of receipt of offence report, by prescribing time limits at various stages of issue of Show Cause Notice, submission of inquiry report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs recording his findings on the issue of suspension of CHA license, and for passing 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. 7.2. In cases where immediate suspension action against a CHA is required to be taken by a Commissioner of Customs under regulation 20(2), there is no need for following the proced....
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....ow Cause Notice. 22(7) 20(7) Passing of Order by the Commissioner. Within 90 days from the date of submission of the Inquiry Report. TOTAL DURATION 270 DAYS or 9 MONTHS. In order to ascertain if such inordinate delays as in the instant case are exceptional or such delays are regular, Revenue was asked to submit data to ascertain if they are following time limits and if this case was an exception to the rule. Data was sought of such cases from the period when such time limits were introduced under the CBLR, 2013. Vide miscellaneous application No. C/MA(Ors)/93379/ 16, Revenue has submitted the said data consisting of 15 records. Revenue has also stated that for compiling the data they require time of 8 to 12 months. 2. Learned Counsel for the appellant argues that the time limit prescribed under the CBLR, 2013 are mandatory in nature as has been held by the following decisions of Hon'ble High Court : (i) In the case of Overseas Air Cargo Services - 2016 (340) ELT 119 (Del) (ii) Hon'ble High Court of Madras in the case of Saro International Freight System - CDJ-2015 MHC-7964. (iii) Hon'ble High Court of Delhi in the case of IND....
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.... ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion." 3.2 Ld AR further relied on the decision of Hon'ble High Court of Kolkata in the case of Bose Enterprises &Another vs. Union of India in Writ petition No. 143 of 201 Ovide Order dated 15.03.2012. Ld AR also relied on the decision of Hon'ble High Court of Delhi in the case of Burleigh International - 2016 (333) ELT 9 (Del). Ld AR also relied on the decision of Hon'ble Apex Court in the case of Union of India & Others Vs. R.S. Saini - 1991 Supp (2) Supreme Court Cases 151. 4. We have gone through the rival submissions. We find that admittedly the ....
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.... and almost 4 times the prescribed time limit. This is a case of exceptional delay. 4.1 Ld AR has relied on the decision of Hon'ble Apex Court in the case of Chairman, LIC Vs. A. Masilamani (supra). In the said decision, Hon'ble Apex Court has interpreted the dismissal of a disciplinary proceeding under LIC (Staff) Regulation, 1960. In the said case, Hon'ble High Court had interpreted regulation 46(2) of the said Regulation and set aside the proceedings. Regulation 46(2), as stated in the said order, reads as follows: - "In case of an appeal against the order imposing any of the penalties specified in Regulation 39, the appellate authority shall consider - (a) Whether the procedure prescribed in these Regulations has been complied with, and if not, whether such non-compliance has resulted in failure of justice; (b) Whether the findings are justified; and (c) Whether the penalty imposed is excessive, adequate or inadequate, and pass orders........ xxxx xxxxxxxxxxx" It is seen that Hon'ble High Court had in that case considered delay as one of the contributing factor. It is seen that ther....
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....e Commissioner grants a fresh hearing to the petitioner or his representative as the case may be, within a week from today and thereafter pass orders under Regulation 19 either revoking or confirming the suspension. It is seen that subsequent to this decision of Hon'ble High Court dated 13.5.2014, the Hon'ble High Court of Delhi in other cases has taken a different view. The same have been discussed in para 4.5 below. 4.4 Ld AR has also relied on the decision of Hon'ble Apex Court in the case of R.S. Saini (supra). In the said case, the Hon'ble Apex Court held that time limit prescribed by a memorandum of Government of India cannot be held to be mandatory. The said case is distinguishable for the reason that in the instant case, the time limit is not prescribed by Administrative order of the Ministry but by a statutory regulation issued under the authority of Customs Act, 1962.The instant case involves period when time limit have been prescribed by legislation under CBLR, 2013. 4.5 Learned Counsel for the appellant has cited a recent decision of Hon'ble High Court of Delhi in the case of Overseas Air Cargo (supra). In the said case, Hon'....
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..... Commissioner of Customs, Sea Port/lmports, Chennai - 2015 (322) E.L.T. 170 (Mad.) and Commissioner v. Eltece Associates - 2016 (334) E.L.T. A50 (Mad.). 4.6 Hon'ble High Court of Madras in the case of Saro International Freight System (supra) has observed as follows: 28. It is also to be noted that every act of breach by the Broker would entitle the authorities to initiate proceedings from the date of knowledge of the offence. It is only if the time limit is strictly followed, swift action can be initiated against the Customs Brokers and the authorities can also be made accountable. The Regulations only contemplate initiation of proceeding by issuance of notice within 90 days. While, making out a prima facie case, the respondents ought to have, without any shadow of doubt, treated the word "shall" in Regulation 11 as "mandatory" and not "directory". Therefore, when a time limit is prescribed in Regulations, which empowers action in Regulation 18 and procedure in Regulation 20 (1), the use of the term "shall" cannot be termed as "directory". It is pertinent to mention here that the CBLR, 2013 have replaced the CHA Regulations. The CHA regulations did not have ....
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....g was observed while seeking data on the following of time limits: - "4. We find that we are regularly getting cases whether the said time limits have not been followed. The arguments of the appellants in such cases usually start on the ground of limitation. There are various decisions which hold that the time limits prescribed under the regulations are not directory but mandatory. There are some decisions otherwise too. In similar circumstances, earlier in the case of Skylark Travel Pvt. Ltd., wherein delay of 4 years had occurred (Order No. M/ 86739/ 16/CB dated 22.03.2016), the Bench had sought data to ascertain if delays are regular or exceptional. The said data was not provided for a period of almost four months. The matter was heard on 23.11.2015, the Bench waited for four months for the data, however order pronounced on 22.03.2016. The order had to be passed without the benefit of the said data. in the said order, the following observation was made: - "8. During the arguments, the issue of required delays in following the various time limits set out in the CHALR was also taken up. For appreciation of facts and circumstances, the learned AR agreed to provide....
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.... Inquiry is still pending 4. Vilas Transport Company, 11/470 9.3.2011 24.3.2011 5. Fairdeal Shipping Agency Pvt. Ltd., 11/091 9.9.2011 19.9.2011 20.11.2014 20.11.2014 22.32016 6. Kamal Clearing & Forwarding Pvt. Ltd., 1 1/691 18.8.2011 9.9.2011 15.12.2011 15.12.2011 15.12.2011 15.5.2013 Freight Forwarders, 11/477 30.6.2011 13.72011 9.112011 9.11.2011 9.112011 Inquiry is still pending 8. Hind Ship Airways, 11/672 27.12.2011 31.1.2012 6.7.2012 6.7.2012 6.7.2012 25.9.2012 9. MaaKrupa, 1 1/354 7.72011 20.7.2011 14.10.2011 14.10.2011 14.10.2011 4.6.2015 10 Dhakane& Co., 11/944 29.92011 16.11.2011 16.11.2011 8.2.2013 11 Jeena& Co., 11/025 25.11201 1 23.12.2011 ....
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....I have assumed was the most precious liberty that man possesses. Man has indeed, as much right to work as he has to live, to be free and to property. To work means to eat and it also means to live." The right to live and the right to work are integrated and interdependent and, therefore, if a person is deprived of his job as a result of his eviction from a slum or a pavement, his very right to life is put in jeopardy. It is urged that the economic compulsions under which these persons are forced to live in slums or on pavements impart to their occupation the character of a fundamental right." In the instant case the appellant has been out of work for long period of time. In most such cases the licences are suspended as soon as the inquiry starts and remain suspended till the enquiry is completed. The Custom Brokers are deprived of the fundamental right to work for long periods of time. The fundamental right to work is being denied to the appellant due to failure of the Revenue to follow the time limits prescribed in the law. In the 15 cases for which the data has been provided by the revenue, it is seen there are inordinate delays and the Brokers are rendered without wo....