2018 (1) TMI 879

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....of the suspension of licence in terms of Regulation 19 (2) of the 2013 Regulations. 4. In order to appreciate controversy, we would like to reproduce Regulations 20 and 22 of the 2013 Regulations which read as under:- "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 license 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 defense 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. (2) The Commissioner of Customs may. on receipt of the written statement from the Customs Broker, or where no such statement has been received within the time-limit specified in the notice referred to in sub-regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs, a....

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....o comply with any provision of these regulations shall be liable to a penalty which may extend to fifty thousand rupees." 5. The Delhi High Court in Overseas Air Cargo Service v. Commissioner of Customs, 2016 (340) ELT 119 (Del.), Indair Carrier Pvt. Ltd. v. Commissioner of the Custom (General) 2016 (337) ELT 41 (Del.) and Commissioner of Customs v. S. K. Logistics 2016 (337) ELT 39 (Del.), has held that the time period of 90 days mentioned in Regulation 20(1) of the 2013 Regulations is mandatory and sacrosanct. A show cause notice issued after 90 days of receipt of the offence report, is invalid. In other words, if the show cause notice was not issued within a period of 90 days from the date of receipt of the offence report, the proceedings under Regulation 20 would be null and void. We are bound by these decisions passed by co-ordinate Division Benches of this Court. 6. It is an accepted and admitted position that the petitioner's license as a custom broker was suspended under Regulation 19 of the 2013 Regulations on 31.03.2017. Earlier, an order of prohibition was passed on 15.03.2017. The petitioner had challenged these orders in W.P.(C) No. 3265/2017, which was disposed of v....

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....he expression "offence report" anywhere else other than Regulation 22(1). Even the grounds on which a licence can be revoked or suspended, mentioned in Regulation 20(1), do not include the definition of the expression offence or offence report. There are only three grounds on which a licence can be suspended or revoked under sub-regulation (1) of Regulation 20. Regulation 20(1) reads as follows:- 20. Suspension or revocation of licence. (1) The Commissioner of Customs may, subject to the provisions of regulation 22, revoke the licence of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part or whole of security, on any of the following grounds, namely : (a) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under regulation 10; (b) failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else; (c) any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or anywhere else which in the opinion of the Commissioner renders him unf....

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....ce report" was followed by another Single Judge of the Madras High Court in Patriot Freight Logistic System (supra). 13. It may be also relevant to reproduce, the factual assertion made by the respondents in the counter affidavit filed to the W.P. (C) 3265/2017. In the said counter affidavit, the respondents had pleaded:- "It is submitted that the Prohibition Order vide o-i-o no.13/SM/ Prohibition/2017 dated 15.03.2017 was issued on the basis of investigation report received from the Commissioner of Customs, ICD PPG, New Delhi vide letter C.No.VIII/6/ICD/PPG/SIIB/Pine Solution/72/2016/4374 dated 01.03.2017 wherein it was informed that the petitioner filed a Bill of Entry No. 7525937 dated 21.11.2016 for M/s Pine Solution, B-24, Jain Park, Uttam Nagar, New Delhi- 110059 under RMS and the same was cleared and allowed for out of charge (OOC). The said consignment was found mis-declared as the actual goods were "Measuring Tape" and in place of plain rubber sheet as declared. During the course of investigation, it was also gathered that the Bills of Entry of importers i.e. M/s Pine Solutions, M/s Shakti Traders and M/s N U Asia Overseas, were filed through the petitioner i.e. M/s Harj....