TaxTMI 
TaxTMI 
2019 (10) TMI 1331
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of Customs duty. The information further indicated that documents were forged/fabricated to show the re-export of warehoused goods. These illegal acts were committed by both these persons by creating following four fictitious firms with IECs in their names :- (i) M/s. Accturists Overseas (OPC) Pvt. Ltd. (IEC - 0517503581) (ii) M/s. Spark Exports (IEC - 0516517803) (iii) M/s. Shree Shyam Enterprises (IEC - 0516966839) (iv) M/s. Horrens Exim (IEC - 0516516299) 2.1 Not only this, they had also obtained bonded warehouses in the names of their employees having fictitious residential addresses. The information categorically indicated that Shri Ramesh Wadra was the financer and Shri Sanjeev Maggu was the mastermind behind the activity of diverting the warehoused goods in the domestic market. Based on the said information and after conclusion of the investigation that Show Cause Notice No. 25, dated 10-8-2018 was served upon the appellant, M/s. D.S. Cargo proposing them to be responsible for contravention of various provisions of CBLR, 2018 and erstwhile CBLR, 2013 Regulations as such liable for revocat....
X X X X Extracts X X X X
X X X X Extracts X X X X
....different conditions in Customs Act, 1962 and hence, these cannot be considered as same/synonyms nor can these be interchangeable. It is submitted that the notice in the present case was admittedly issued within 90 days. It is the service thereof that was beyond a period of 90 days, which cannot be the basis for holding show cause notice as barred by time. Otherwise also time-limit of the Regulation 20(1) cannot be considered as mandatory. Department has relied upon the decision of Hon'ble Supreme Court in the case of K.M. Ganatra & Co. reported in 2016 (332) E.L.T. 15 (S.C.) impressing upon the important and crucial role of the CHA, who is supposed to safeguard the interest of both import, as well as the Customs. It is submitted that in case of any contravention of the obligations imposed by CBLR Regulations upon the CHA, he is liable to be punished. With these submissions, appeal is prayed to be dismissed. 6. Both the parties have reiterated their submissions vide the written notes furnished by them after the appeal was reserved for order on 17 May, 2019. 7. After hearing both the parties and going through the record, as well as the decision of the Co-ordinate Bench i....
X X X X Extracts X X X X
X X X X Extracts X X X X
....preceding words. But unless there is a genus which can be comprehended from the preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specific words. 7.2 In another case titled as Amar Chandra Chakraborty v. Collector of Excise, Govt. of Tripura & Ors. reported in AIR 1972 S.C. 1863 Hon'ble Apex Court has observed that when there is no intention in the Act that the general words were intended to receive the wide meaning, the same could not be construed in any limited sense. 7.3 Both these adjudications make it clear that while interpreting a word in a statute the intention of the Legislature in that particular Section or the Act, has to be looked into, as whole, to appreciate as to whether any general word irrespective having an overlapping meaning, has to be read in a limited sense or in a broader sense. The Supreme Court further clarified that even while applying the principle of ejusdem generis that this Rule of Interpretation is applicable where a class of things is followed by general wording that is not itself expansive, the general wording is usually restricted to things of the same....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ly uses words "served". It reads as follows :- (a) the proper officer shall, within (two years) from the relevant date serve notice on the person chargeable with the duty or interest which has not been so levied (or paid) or which has been short-levied or short-paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice; 7.8 Section 18 of the Customs Act also envisages that the proper officer shall "serve the notice". As per Section 110(2) thereof the word used is "notice is given". Whereas, Regulation 20(1) of CBLR, 2013/2018 of the Customs Act prescribes that Commissioner shall issue notice. 8. The above perusal about different phraseology in the different provisions of the same Act is sufficient to form an opinion that the intention of Act is to make the event of issuance mutually exclusive to the event of service, and that the two cannot be equated as one. The language of Section 153, as above, makes it clear that if the word issued and served, the way they are used in the Customs Act, (as discussed above) if are presumed to connote one and the same thing, then the whole purpose of....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ntry or departure of conveyance or the import or export of goods at any Customs station. On a reading of the Regulations relating to the grant of licence to act as Customs House Agent, it is seen that while Customs House Agent should be in a position to act as agent for the transaction of any business relating to the entry or departure of conveyance or the import or export of goods at any Customs station, he should also ensure that he does not act as an agent for carrying on certain illegal activities of any of the persons who avail his services as Customs House Agent. In such circumstances, the person playing the role of Customs House Agent has got greater responsibility. The very prescription that one should be conversant with the various procedures including the offences under the Customs Act to act as a Customs House Agent would show that while acting as Customs House Agent, he should not be a cause for violation of those provisions. A CHA cannot be permitted to misuse his position as a CHA by taking advantage of his access to the Department. The grant of licence to a person to act as Customs House Agent is to some extent to assist the Department with the various procedures suc....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ari (supra) case. Hence, the Legislature cannot intend while fixing a time-limit upon Customs Commissionerate to be mandatory when the non-compliance thereof amounts to protect an illegal activity of the CHA/CB. 13.1 The argument that use of word 'shall' in the impugned provision makes the provision mandatory is also not acceptable in view of decision of Hon'ble Supreme Court in Sharif-Ud-Din v. Abdul Gani Lone cited as (1980) 1 SCC 403, which held as under :- "The difference between a mandatory rule and a directory rule is that while the former must be strictly observed, in the case of the latter, substantial compliance may be sufficient to achieve the object regarding which the rule is enacted. Certain broad propositions which can be deduced from several decisions of Courts regarding the rules of construction that should be followed in determining whether a provision of law is directory or mandatory may be summarised thus : The fact that the statute uses the word 'shall' while laying down a duty is not conclusive on the question whether it is a mandatory or directory provision. In order to find out the true character of the legislation, the Court has to ascertain the obje....
X X X X Extracts X X X X
X X X X Extracts X X X X
....sidered. The intention of said particular provision the Hon'ble Apex Court held that for seeking the remedy of appeal, the limitation starts from the date on which the order was communicated to the affected party. Because it is thereafter only the said party will have reasonable opportunity of knowing of passing of the order and the contents thereof. As already discussed above, it is not so in Regulation 20(1) CBLR, 2013. 14. As we have already discussed about the cardinal rule of interpretation that such meaning should not be assigned to any word or phrase or to the provision, as such, of the statute, as may likely to lead to absurd results, I divert to the merits of the present case. The order under challenge has discussed the lapses and violations on behalf of the Customs Broker in details. It is also apparent from the record that the Customs Broker admittedly failed to bring the wrong doings of Shri Sanjeev Maggoo about the acts alleged in the show cause notice to the notice of the Department. There is no evidence on record to falsify the allegations against Shri Sanjeev Maggoo. This shows that the Customs Broker preferred his business and monetary benefits to the interes....