TaxTMI 
TaxTMI 
2019 (10) TMI 504
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....M/s. Shree Shyam Enterprises (IEC - 0516966839) (iv) M/s. Horrens Exim (IEC - 0516516299) It was also noticed that though Shri Sanjeev Maggu himself was a Customs Broker but was utilising the services of other Customs Brokers namely M/s. D.S. Cargo Agency and M/s. R.P. Cargo Handling Services as the front Brokers for his clandestine operations. The input categorically stated that said Shri Ramesh Wadhera was the financer and Shri Sanjeev Maggu was the master mind behind the said activity of diverting the warehoused goods from public bonded warehouses M/s. Rider India & M/s. Prime Time Exports into the domestic markets without payment of Customs duty and creating forged/fabricated documents evidencing the re-export of warehoused goods. Based on the said information, searches were conducted by the DRI officers on 14.07.2017 in the residential premises of both the above named people and also in their various official premises as well as in the premises of associated importing firms and the cargo agencies. Statements of all concerned were also recorded. It is thereafter that the show cause notice No. 16729 dated 10.08.2013 was served upon the appellants proposing that the appellant ....
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.... Mumbai reported in 2017 (357) E.L.T. 1017. The decision of CESTAT, Delhi in the case of Ambika Enterprises Vs. Commissioner of Customs, New Delhi reported in 2016 (343) E.L.T. 1022 (Tri.-Del.) has also been cited, praying for Appeal to be allowed. 4. Per contra, it is submitted on behalf of the Department that after receiving the information from Additional Directorate, DRI Headquarters, vide letter dated 10.05.2018, that a meticulous investigation in the form of conducting searches at various premises, in the form of recording of the statements of various people who were found the IEC Holders of the fictitious Companies as allegedly created by Shri Ramesh Wadhera and Shri Sanjeev Maggu, the Director of the appellant Company was called. It is impressed upon that the Director of the appellant was the master mind of diverting the warehoused goods to the domestic market. The statements being given to the Customs officers under Section 108 of the Customs Act are well admissible into evidence. Thus, there is sufficient evidence on record as a proof for the alleged illegal act on the part of the appellant. Hence, there is no infirmity in the Order under challenge. It is impressed upo....
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....013. Thus, the issue involved at this stage is: 6.1 Whether the time frame prescribed in Regulation 20(5) is mandatory or directory i.e., whether the time therein be so strictly construed so as to result in declaring initiation of action itself invalid, if that is not adhered to. 7. CBLR Regulations aim at securing interest of the customs house agent and also of the revenue. The urgency and expediency of the action permits the authority to step in immediately or with promptitude. A balancing of interests is achieved by ensuring prompt action and avoiding undue delay in taking it to its logical conclusion. Though word used in Regulation 20(5) is "shall" but in view of above observed aim of CBLR, we are of the opinion that the question as framed above would depend on the intention of the legislature and not necessarily merely by looking at the language in which it is clothed with. We opine that it is mandatory for the Court to look into the nature of the statute and the consequences which would follow from construing it in one way or the other, the ambit of the other provisions, the necessity of compliance of the provisions in question. Above all, whether the object of the enactme....
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....person on whom the right is conferred is prejudiced because of non performance of the duty within a specific time. Thus, cannot be permissible that the customs house agent is entitled to take benefit of his own wrong, on the ground that the process is not completed within the stipulated period. In such circumstances, if the provision is construed in such a rigid form and no flexibility is allowed, though it results into declaration of the entire action of the revenue as illegal, it would not ensure justice rather shall defeat it? Merely because the inquiry was not completed within a stipulated period, the customs broker may not be allowed to walk free, as his suspension cannot be continued beyond the period prescribed in the Regulation and his licences need not be restored. The Hon'ble Apex Court in the case of Delhi Air take Services Pvt. Ltd. and another Vs. State of West Bengal and another reported in 2011(a) SCC page 354 has clarified the above position by quoting an example of criminal law. It observed: "where a statute imposes a public duty and proceeds to lay down the manner and time frame within which the duty shall be performed. The injustice or inconvenience resulting ....
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....scribed in the Regulation, on part of Revenue, the Revenue need to enumerate the reasons and attribute them to an officer dealing with it and also should account for every stage at which the delay occurs. Every endeavour should be made to adhere to the time schedule. In exceptional circumstances also, which are beyond the control of the revenue if the time schedule is not adhered to, an accountability be fastened on the Revenue, to cite reasons why the time schedule was not adhered to, and then if the explanation offered is reasonable and is not reflecting the casual attitude on behalf of the Revenue rather there is apparent malafide on part of the CB, in that case the time line has to be considered directory only. Thus, the non compliance thereof cannot be the ground to vitiate the show cause notice. We draw our support from the decision in the case of Union of India Vs. R.S. Saini reported in 1999 (2) SCC 151 wherein Supreme Court held that the office memorandum fixing the time limit for completion of disciplinary proceedings is only a mid-line, non compliance of such office memorandum will not invalidate the punishment. The customs house agent, who is in a position of the delinq....
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....e custom house agent, depriving them of their means of livelihood and it was observed that the purpose of prescribed time limit was to safeguard the interest of the custom broker and smooth import and export of goods. Whereas, present is the case of alleged fraud on part of the appellant. Adjudicating Authority has clearly observed the delaying strategy of the appellant's Director. Section 17 of Limitation Act while talking about effect of fraud or mistake lays that the fraud vitiates the limitation prescribed. Thus, those are not applicable to the present case. 12. In the light of the entire above discussion, when facts of this case are looked into, we observe that after the show cause notice was served upon the appellant tried to delay investigation by not joining the investigation. It is also observed that vide his letter dated 30.10.2017, Shri Sanjeev Maggu had stated that no firm in the name of M/s. Leo Cargo Services ever existed at the address on which the hearing notices were served. Thus, the malafide intentions to not to enable the DRI officials to unearth the modus operandi of committing the alleged illegal act were very much apparent on the record. These reasons are su....