TaxTMI 
TaxTMI 
2022 (4) TMI 1372
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....eport of the even date. Based upon the further investigation, search and the statements recorded during investigation and from the documents recovered, the Department alleged that importer (M/.s Guru Kripa) by making incorrect declaration of the quantity, non declaration of some of the items and value of imported goods in the Bill of Entry No. 3590163 dated 12.10.2017 have contravened the provisions of section 46 of Customs Act, 1962 read with Rule 11 of Foreign Trade (Regulation), Rules, 1993 have rendered the goods covered under the impugned Bill of Entry liable for confiscation. The importer was also alleged to have suppressed information from the Customs authorities with the intent to evade applicable Customs duty by filing incorrect quantity, description and value of goods in Bill of Entry No. 3590163 dated 12.10.2017 and thus have rendered themselves liable for penal action. Based upon these observations vide the Show Cause Notice No. 03/2018-19 dated 24.4.2018 that the differential duty on determined assessable value was demanded from the importer along with interest and the proportionate penalty. The penalty under section 112 and 114AA of the Customs Act, 1962 was propos....
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....effect are prayed to be set aside. Learned Counsel has relied upon the following decision: 1. Parvath Shipping Agency vs CC, (Gen) Mumbai 2017 (357) ELT 296 (Tri-Mumbai) 6. With respect to the allegation under Regulation 11E, it is submitted that there is no evidence to prove that the appellants imparted any incorrect information to the importer. It is submitted that findings are based upon the submissions of Shri Vishal Matlotia, and Shri Vijay Kumar Matlotia, the persons authorised for M/s. Guru Kripa, importer. None of them has alleged any fault of the appellant. They rather had alleged that a person named Sonu is the master mind but the Department has failed to examine the said Sonu. Finally, it is submitted that there is no evidence of any knowledge of the appellant for the mis-declaration in the impugned consignment. Question of imposition of penalty does not at all arises. Learned Counsel has accordingly, prayed that the order under challenge to be set aside and that the appeal be allowed. 7. While rebutting the submissions, the learned Departmental Representative has submitted that there is no violation of timeline in issuing the Show Cause Notice to the appe....
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....nd the Customs Act. The regulations does not only contemplate action against the erring Brokers, but also contemplates timely action. The Hon'ble Madras High Court in the case of Kamakhshi Agency vs Commissioner reported as [2001 (129) ELT 29 Mad] has held that no doubt that action is to be initiated against the erring brokers but the same has to be in strict compliance with the provisions. It was held that the law of limitation is common to both the parties. The provision not only enables the respondent to levy penalty, but also empowers the respondent to revoke the license, which is an extreme step curtailing the right to carry on any trade or profession as guaranteed by the Constitution of India. The object behind such a provision can only imply the following : (a) the truth must be culled out at the earliest point in the interest of not only the Customs Broker or for that matter of the department also, (b) that such unlawful activities must be curbed at the earliest point by revoking the license, (c) unless a time limit is prescribed, action would not be initiated. 10. Thus it can be seen that the purpose, for which such time limit has been prescribed, is to curb the smuggli....
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....r injustice to persons resulting therefrom when the provision is read one way or the other, the relation of the particular provision to other provisions dealing with the same subject as well as other considerations which may arise on the facts of a particular case, including the language of the provision. The said decision of the Constitution Bench was followed in Salem Advocate Bar v. Union of India reported as [2005 (6) SCC 344]. While doing so, the Supreme Court pointed out therein that our laws on procedure are grounded on a principle of natural justice which requires that men should not be condemned unheard, that decision should not be reached behind their back, that proceedings that affect their lives and properties should not continue in their absence and that they should not be precluded from participating in them. 13. In Sharif-Ud-Din v. Abdul Gani Lone reported as [AIR 1980 SC 303], the Hon'ble Supreme Court indicated that the question whether a provision of law is mandatory or not depends upon its language, the context in which it is enacted and its object. The Court made an important observation, which will resolve the problem for us and hence it is extracted as foll....
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....he duty, such provision should be treated as a directory one. ............" 17. To my considered opinion, outcome of the above decisions is that if the CHA prima facie appears to be innocent and honest and there is inordinate and unreasonable delay on the part of the department while investigating the matter and issuing the Show Cause Notice to said CHA, the word "shall" in Regulation 20(1) has to be treated as mandatory. Per contra when prima facie there is allegation of fraud /mis-representation / suppression or any such omission which has resulted into the alleged offence and the delay beyond 90 days was for the reasons beyond the control of the department that the said word "shall" has to be treated as directory in nature. 18. Reverting back to the facts of the present case, the time check is observed to be as follows: S.No. Event Date 1. Bill of Entry filed by the appellant for M/s Guru Kripa 12.10.2017 2. Consignment put on hold by DRI 16.10.2017 3. 100% examination of the consignment 26.10.2017 4. Panchnama prepared at Customs Bonded warehouse 09.11.2017 5. Statement of Vijay Kumar, authorized representative of the imp....
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....ion in his favour by the importer in his favour. However, it is apparent that the authorization was produced before the Inquiry Officer. In view of the said observation, the findings that the later submission of the authorization shall not absolve the Customs Broker of his wrong doing are not held sustainable. It is held that submitting the authorization was a mere procedural formality. It admittedly was submitted before the impugned order was passed. It is held that violation of Regulation 10A has wrongly been alleged upon the appellant. 21. Coming to the regulation 10D and 10E of CBLR 2018, the same reads as follows: Regulation 10(d) of CBLR, 2018 prescribes the following- "A Customs Broker shall advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Assistant Commissioner of Customs, as the case may be." Regulation 11(e) of CBLR, 2018 stipulates that "A Customs Broker shall exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage." 22. The ....