TaxTMI 
TaxTMI 
2016 (12) TMI 1156
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....ction against the Customs Broker (erstwhile CHA), under Regulation 19 (1) of CBLR, 2013 (erstwhile regulation the CHALR 2004). The statements of following persons involved in the case of gross undervaluation were obtained from the DRI, Mumbai on 5.07.2013. i) Statement dated 15.02.2012 of Shri Vinesh Naresh Chedda ii) Statement dated 14.03.2012 of Shri Saleem Roshan Ali, Manager of M/s. Charania Associates iii) Statement dated 19.03.2012 of Shri Zulfikzar M. Charania (Licence holder of M/s. Charania Associates). From the above statements recorded under Section 108 of the Customs Act, 1962 recorded by DRI, Mumbai and provided to the Commissioner (Customs), who was of the view that the C.B. (CHA) is seen to violate the regulations 11(a), 11(d), 11(m) and 11(n) of CBLR, 2013 (erstwhile Regulation 13(a), 13(d), 13(n) and 13(o) of CHALR, 2004). Hence the Licence of CB (CHA) was placed under suspension vide Order No. 10/2013 dated 23.07.2013 and suspension was further continued vide Order No. 20/2013 dated 23.08.2013 under Regulation 19(2) of CBLR (formerly Regulation 20(3) of CHALR 2004), after granting personal hearing to the C.B (CHA) on 22.08.2013. Subsequently enquiry pr....
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....ginal was not in accordance with the time line prescribed in the regulations. In this fact the impugned order is not sustainable on the ground of limitation itself without going into the merit of the case. In this support he placed reliance on the following judgments:- (i) Impexnet Logistic Vs. Commissioner of Customs (General) 2016-TIOL-1069-HC-DEL-CUS (ii) M/s. Shiva Khurana Vs. Commissioner of Customs, New Delhi (Import and General) 2016-TIOL-1220-CESTAT-DEL (iii) M/s. Naresh Kumar Meena Vs. Commissioner of Customs, Jodhpur 2015-TIOL-1166-CESTAT-DEL (iii) M/s. Lohia Travels and Cargo Vs. Commissioner of Customs (General), New Delhi 2015-TIOL-2467-CESTAT-DEL (iv) Commissioner of Customs (General) Vs. Sainath Clearing Agency 2015 (326) E.L.T. 548 (Bom.) (v) Ajay Clearing Enterprise Vs. Commissioner of Customs (General) 2016 (336) E.L.T.33 (Bom.) (vi) A Tajudeen Vs. Union of India 2014-TIOL-85-SC-FEMA He further, submits that the entire case was decided on statements of various persons. However, the appellants representative retracted their statement. Therefore only on the basis of statement and that too retracted one it cannot constitute the sole basis to a....
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....iation of the proceedings till the passing of order of revocation of CB Licence of the Appellant, the department has not complied with the condition of the time limit prescribed not only for stage wise time limitation but also for over all time limit of 9 months for revocation of CB License. Therefore, the impugned order is not sustainable only on time limit without going into the merit of the case. Therefore we take up the case for decision on limitation. In the present case the proceeding conducted from 15.02.2012 to 02.07.2015. Therefore, the provision of both regulation, i.e. customs house agent licence regulation, 2004 and Customs broker Licence regulation, 2013 are relevant. The provision prescribing time line in both the proceedings are reproduced below :- CHALR, 2004 Under the CHALR, 2004 Regulation 20 empowers the Commissioner to suspend or revoke the licence and the procedure which needs to be followed in this regard is found in Regulation 22. For ready reference Regulation 22 is reproduced as under: "22. Procedure for suspending or revoking licence under Regulation 20- (1) The Commissioner of Customs shall issue a notice in writing to the Customs House Agent ....
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.... specified period not being less than thirty days, any representation that he may wish to make against the findings of the Deputy Commissioner of Customs or Assistant Commissioner of Customs. (7) The Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs House Agent, pass such orders as he deems fit within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-regulation (5). (8) Any Customs House Agent aggrieved by any decision or order passed under regulation 20 or sub-regulation (7) of regulation 22, may prefer an appeal under Section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of Section 129 of the Act". CBLR, 2013 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 requir....
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....n, if any, made by the Customs Broker, pass such orders as he deems fit either revoking the suspension of the license or revoking the licence of the Customs Broker or imposing penalty not exceeding the amount mentioned in regulation 22 within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-regulation (5) : Provided that no order for revoking the license shall be passed unless an opportunity is given to the Customs Broker to be heard in person by the Commissioner of Customs. The time schedules prescribed under these Regulations during the relevant period are as follows: CHALR 2004 CBLR 2013 Purpose Specified Time Period 22(1) 20(1) Insurance of Show Cause Notice to the CHA/CB by the Commissioner. Within 90 Days from the date of receipt of an offence report. 22(5) 20(5) Preparation of Report of Inquiry by the Deputy/ Assistant Commissioner. Within 90 Days from the date of issuance of the show 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 ....
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.... Inquiry report served on the Appellant. 04.06.2015 A detailed reply to the report was filed by the Appellant before the Commissioner. 02.07.2015 The Commissioner, by the impugned order, revoked the CB Licence. From the abovementioned sequence of dates, it can be seen that the offence report was received by the office of the Commissioner on 05.07.2013. Thereafter the Show Cause Notice/Chargesheet was issued to the appellant on 04.10.2013. Thus Show Cause Notice was issued beyond the stipulated time of 90 days which is prescribed time limit under regulation 22(1) / 20(1) of CBLR, 2013. 8. The inquiry officer filed his report on 23.04.2015 i.e almost after 200 days from the date of Notice date 04.10.2013.It is observed that the inquiry officer not only defied the time line prescribed in the regulation but also disobeyed the direction given by the Commissioner to the inquiry officer. The Ld. Commissioner passed the order for revocation of the CB licence on 02.07.2015. The overall period prescribed for the entire proceeding is 9 months or 270 days from the date of receipt of offence report. As the facts discussed above the total period taken for entire proceeding till....
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....r the Regulations." 7. This Court has consistently emphasised the mandatory nature of the aforementioned time limits in several of its decisions. These include the decision in Shankar Clearing & Forwarding v. C. C. (Import & General) 2012 (283) E.L.T. 349 (Del.) = 2012-TIOL-657-HC-DEL-CUS , the order dated 25th April, 2016 passed by this Court in Customs Appeal No. 14/2016 (Commissioner of Customs (General) v. S. K. Logistics) and the order dated 29^th April, 2016 = 2016-TIOL-845-HC-DEL-CUSin W.P.(C) No. 3071/2015 (M/s Sunil Dutt v. Commissioner of Customs (General) New Customs House). The same position has been reiterated by the Madras High Court in Sanco Trans Ltd. v. Commissioner of Customs, Sea Port/Imports, Chennai (2015) 322 E.L.T. 170 (Mad.) = 2015-TIOL-1524-HC-MAD-CUS and Commissioner v. Eltece Associates 2016 (334) E.L.T. A 50 (Mad.)." 8. Recently by an order dated 24^th April, 2016 in W.P.(C) No. 1734/2016 [HLPL Global Logistics Pvt. Ltd. v. The Commissioner of Customs (General)] this Court reiterated that the time limits in Regulation 20 of the CBLR/Regulation 22 of the CHALR are sacrosanct. 9. Admittedly, the SCN under the CHALR/CBLR in the present case was iss....
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....duration of nine months. The Hon'ble High Court of Madras in A.M. Ahamed & Co. vs. Commissioner of Customs (Imports), Chennal - 2014 (309) ELT 433 (Mad.) = 2014-TIOL-1503-HC-MAD-CUS has held as under: "20. The time limit prescribed in Regulation 22(1) has to be understood in the context of the strict time schedule prescribed in various portions of the Regulations. Regulation 20(2), for instance, entitles the Commissioner, to suspend the licence of an agent, in appropriate cases where immediate action is necessary. Regulation 22 (3) prescribes a time limit of 15 days. Regulation 22(1) prescribes a time limit within which action is to be initiated. It also prescribes the time limit under Regulation 22 (5). Therefore, considering the fact that the whole proceedings are to be commenced within a time limit and also concluded within a time frame, I am of the view that the show cause notice issued to the petitioner on 8.5.2010 with a copy marked to the first respondent should be taken as the date of receipt of the offence report. Consequently, the period of 90 days should commence only from that date. If so calculated, the impugned proceedings have obviously been initiated beyond t....
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.... (supra) is directly dealing with CBLR and the legal sanctity of time limit prescribed under the Regulations. As such, we find the order of the lower authority which was issued without adhering to the time schedule in every stage is liable to be set-aside on this ground. 7. Further, we find that the original authority agreed with the appellant's submission that the inquiry report in its entirety is a verbatim repetition of show cause notice issued under Customs Act, 1962. He further records that he is not inclined to give undue cognizance to the said inquiry report. However, he concludes that the said report is not in violation of Regulation 22 of CHALR, 2004 and finds no infirmity in this regard. We are not able to appreciate such contradiction in the original authority's finding. On the one hand, he finds that the inquiry report, which is a verbatim reproduction of show cause notice issued under Customs Act and as such he is not taking cognizance of the said report; on the other hand, he finds no infirmity in the report. It is not clear, if inquiry report was not given cognizance, then on what material records the original authority can proceed and decide the case resu....