TaxTMI 
TaxTMI 
2018 (8) TMI 1526
X X X X Extracts X X X X
X X X X Extracts X X X X
....unal to dispose of the stay petition within four weeks from the date of filing of the appeal. With the consent of both the parties, we proceed to decide the appeal itself. 2. Briefly the facts of the present case are that the appellant (Customs Broker - CB)has been holding Customs Broker's (CB) license issued by the Commissioner of Customs, Cochin under Regulation 7 of CBLR 2013 having validity up to 11/05/2024. The CB has also submitted an application for working under Form "C" at Tuticorin Commissionerate. Certain proceedings were initiated against the appellant on the basis of complaint received from the Commissioner of Customs, Tuticorin alleging that the appellant has attempted to smuggle Red Sanders by filing Shipping Bills by misusing IE Code and AD Code of M/s. Scott Garments, Bangalore. It is alleged that the appellant had undertaken the Customs related work for export of readymade garments through the freight forwarders M/s. Total Transport Systems Pvt. Ltd. using the IE code and AD code of M/s. Scott Garments, Bangalore. Shri J.J. Ebanesar, one of the employee of the appellant, had filed the shipping bill and presented the cargo for examination and cleared the cargo. ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....roposed to revoke the licence 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. 4.2. He further submitted that as per Regulation cited supra, the Commissioner of Customs shall issue notice in writing to the CB within 90 days from the date of receipt of an offence report. He further submitted that there is no provision in the Act and Regulation to extend the period of 90 days further for issuance of the show-cause notice. He also submitted that the show-cause notice has to be issued within 90 days from the date of receipt of an offence report and there is no definition of the term „offence report' either in the Act or in the Rules or Regulation made thereunder. Further there is no form or procedure prescribed in the Act or the Regulation for the preparation or communication of the offence report. It is his submission that the offence report is t....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tted that the impugned order is also devoid of merits because the only allegation against the appellant is that he was careless in handling the clients and has not done mandatory verification / checks whereas the appellant has collected the KYC documents of the exporter though the appellant has not physically verified the details of the export by directly contacting the exporter. It is his further submission that for the misconduct of the employee, the appellant should not be held responsible as the said misconduct was outside the scope of his employment and the CB cannot be held liable for such illicit act of the employee. In support of his submissions, the learned counsel relied upon the following decisions:- i. AM Ahamed & Co. Vs. CC(Imports), Chennai [2014(309) ELT 433 (Mad.)] ii. Sowparnika Shipping Services Vs. CC, Chennai-VIII [2017(352) ELT 286 (Mad.)] iii. Ambika Enterprises Vs. CC(Import & General), New Delhi [2016(343) ELT 1022 (Tri. Del.)] iv. Masterstroke Freight Forwarders P. Ltd. Vs. CC(I), Chennai [2016(332) ELT 300 (Mad.)] v. Sanjeev Kumar Vs. CC(General), New Delhi [2016((344) ELT 988 (Tri. Del.)] vi. Lohia Tra....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n of the Inquiry Report. TOTAL DURATION 270 DAYS OR 9 MONTHS Further, we find that what constituted „offence report' has not been spelt out in the Regulation. The same will have to be inferred from the circumstances of the case. From the records, we find that by letter dt. 26/10/2016, the Tuticorin Customs Commissionerate intimated the Cochin Customs Commissionerate and the Order-in-Original was also sent to the Cochin Customs Commissionerate along with this letter and it was requested by Tuticorin Customs to the Cochin Customs to take action under CBLR 2013 against the appellant. This Order-in-Original and the letter dt. 26/10/2016 can be considered as „offence report' because the Order-in-Original is very clear regarding the alleged offence committed by the appellant. Therefore the date of knowledge gained by the Commissioner by himself of any communication be it a show-cause notice or the Order-in-Original or a letter narrating the offence committed has to be construed as an offence report and the date of receipt by the Cochin Commissionerate has to be taken as the date of offence report. Further we find that the show-cause notice proposing to revo....
X X X X Extracts X X X X
X X X X Extracts X X X X
....field inspection and by a notification dated 8-4-2010, amendments prescribing time period for initiating action and completing proceedings was made. The same was given effect by notification dated 20-1-2014. Whereas, under CBLR, 2013 having found the necessity to prescribe a period, the Central Board, the statutory authority had included the same in Regulations itself, when they were brought into force. Therefore, when time limit is prescribed in Regulations, which empowers action under Regulation 18 by following the procedure in Regulation 20(1), the use of the term "shall" cannot be termed as "directory". Under such circumstances, the rule can only be termed as "mandatory". The ratio of the above decisions that the time limits prescribed are to be mandatorily followed has also been followed by the Tribunal in several decisions such as - (i) 2016-TIOL-157-CESTAT-DEL = 2016 (332) E.L.T. 751 (Tri.), M/s. Atharva Global Logistics v. Commissioner of Customs, New Delhi. (ii) 2015-TIOL-2467-CESTAT-DEL = 2016 (331) E.L.T. 614 (Tri.), M/s. Lohia Travels and Cargo v. Commissioner of Customs (General), New Delhi. (iii) 2016-TIOL-524-CESTAT-DEL, M/s. Zen C....