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2024 (2) TMI 26
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....lation 17 (5) requires enquiry report to be prepared within the 90 days from the date of show cause notice. 2.1 It has been argue that there is the delay of 66 days over and above the 90 days time limit prescribed under Regulation 17 (5). It was further pointed out that Regulation 17 (7) requires the final order to be passed within 90 days from the date of enquiry report. 2.2 It was argued that there was a delay of 31 days over and above the 90 days limit prescribed Regulation 17 (7) of the CBLR, 2018. The learned Counsel argued that the time limits prescribed under the Customs Broker Licensing Regulation, 2018 are mandatory and failure to follow the said time limits vitiates the entire proceeding. 2.3 The learned Counsel further pointed out that during the enquiry no statement of Shri Ashok Bhanushali the main partner of the appellant firm was recorded. The enquiry report suggests that summons dated 12.04.2012, 14.04.2022 and 12.5.2022 were issued to Shri Ashok Bhanushali but he failed to appear. Learned Counsel Pointed out that only two summons were received through e-mail and Shri Ashok Bhanushali failed to appear as his Brother-in-law was suffering from cancer at advan....
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.... (1) (2) (3) (4) 17 (1) Show-cause Notice to be issued within 90 days from the receipt of report office Office Report dtd. 21/07/2022 Show-cause Notice dtd. 04/11/2022 Was required to be issued on or before 21/10/2022 Delay after 90 days' time limit is - 14 days 17(5) Inquiry Report to prepared within 90 days from the date Show-cause Notice Show-cause be Notice dtd. 04/11/2022 Inquiry of Report dtd. 11/04/2023 Was required to be passed on or before 04/02/2023 Delay after 90 days' time limit is - 66 days 17(7) Order of Revocation (Impugned Order) to be passed within 90 days from the date of Inquiry Report. Inquiry Report dtd. 11/04/2023 Order of Revocation (Impugned Order) dtd. 11/08/2023 Was required to be passed on or before 11/07/2023 Delay after 90 days' time limit is - 31 days There have been various decisions on the issue whether the time limits prescribed in the CBLR, 2018 are directory or mandatory in nature. 4.2 The coordinate bench of Tribunal in the case of Krishna Shipping and Allied Services vide final order dated 06.10.2023 has examined these decisions and come to the conclusion that the time limits prescr....
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....ings. 6. In support of the above contentions, the Learned Counsel for the petitioners relied on the following decisions : (i) Order made in W.P. No. 26923 and 26934 of 2018, dated 22-11-2018; (ii) 2016 (338) E.L.T. 347 (Del. - DB), Impexnet Logistic v. Commissioner of Customs (General) (iii) 2014 (310) E.L.T. 673 (Mad DB), Commissioner of Customs (Seaport Import), Chennai v. CESTAT, Chennai; (iv) a Division Bench decision of this Court made in CMA No. 730 of 2016 dated 13-10-2017. (v) 2016 (340) E.L.T. 119 (Del), Overseas Air Cargo v. CC; (vi) 2016 (337) E.L.T. 41 (Del), Indian Carrier P. Ltd. v. CC. 7. Per contra, the contentions of the Learned Counsels appearing for the respondents are as follows : (a) The limitation prescribed under the relevant regulations is not mandatory, since no consequence follows for not following the time limit. In other words, the relevant regulations do not stipulate any consequence, if a particular act is not done within the time limit prescribed in the regulation. Therefore, the time limit prescribed is only directory and not mandatory as claimed by the petitioners. The ....
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....ioners and the Learned Counsels for the respondents. Perused the materials placed before this Court. 10. These writ petitions are filed by the holders of Customs Broker license issued under the relevant Customs Broker Licensing Regulations. In these writ petitions, they have challenged the respective order of suspension/the show cause notice issued with a proposal to revoke the order of suspension/order imposing penalty under the relevant regulations. The impugned proceedings were passed/issued based on certain allegations that the respective writ petitioners have violated the terms of the license issued to them under the relevant regulations. The facts and circumstances warranting issuance of impugned proceedings differ from case to case. Since these writ petitions are filed by questioning the very jurisdiction of the Authorities concerned in issuing the impugned proceedings beyond the time prescribed under the relevant provisions for doing each act, the factual allegations made against these petitioners warranting issuance of impugned proceedings are not being dealt with in these writ petitions, as this Court is called upon to decide as to whether the limitation period p....
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....ms 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 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 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, as the case may be, to inquire into the grounds which are not admitted by the Customs Broker. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard t....
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....s pending or contemplated. It is further seen that if a license is suspended under sub-regulation (1) of Regulation 19, the Commissioner shall give an opportunity of hearing to the customs broker within 15 days from the date of suspension of license and pass such order, as he deems it fit, either revoking the suspension or continuing it within 15 days from the date of hearing granted to such customs broker. In case, the Commissioner passes an order for continuing the suspension, further procedure thereafter shall have to be followed as provided under Regulation 20. 14. Under 20(1) of the Regulations, the Commissioner shall issue a notice to the Customs Broker within a period of 90 days from the date of receipt of an offence report, stating the grounds on which he proposes to revoke the license or impose penalty. The Customs broker should submit a written statement of defense within 30 days from the date of receipt of the said show cause notice. Regulation 20(2) contemplates that on receipt of the written statement from the customs broker within the time stipulated, the Commissioner of Customs may direct the Deputy Commissioner of Customs or Assistant Commissioner of Custom....
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....rime contention of the petitioner against the show cause notice is that the third respondent/Inquiry Officer has failed to file the report within 90 days from the date of issuance of the show cause notice and therefore, the entire proceedings are vitiated. There is no dispute to the fact that the show cause notice was issued on 13-4-2018. It is also not in dispute that the petitioner filed their reply and participated in the inquiry on 25-4-2018. However, the third respondent prepared the report only on 14-8-2018, which is evident from the perusal of the said report itself, made available in the typed set of papers. Therefore, it is clear that the third respondent has prepared the said report on 14-8-2018, which is undoubtedly beyond the period of 90 days from the date of issuance of the show cause notice. At this juncture, it is relevant to quote Regulation 20(5) of the said Regulations, which reads as follows : "20. Procedure for revoking licence or imposing penalty. ...(5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall prepare a report of the inquiry and after recording his fi....
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....various stages of Issue of Show Cause Notice, submission of inquiry report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs recording his findings on the issue of suspension of CHA license, and for passing of an order by the Commissioner of Customs. Suitable changes have been made in the present time limit of forty-five days for reply by CHA to the notice of suspension, sixty days time for representation against the report of AC/DC on the grounds not accepted by CHA, by reducing the time to thirty days in both the cases under the Regulations." 7. This Court has consistently emphasised the mandatory nature of the aforementioned time limits in several of its decisions. These include the decision in Schankar Clearing & Forwarding v. C.C. (Import & General) 2012 (283) E.L.T. 349 (Del.), the order dated 25th April, 2016 passed by this Court in Customs Appeal No. 14/2016 (Commissioner of Customs (General) v. S.K. Logistics) and the order dated 29th April, 2016 in W.P.(C) No. 3071/2015 (Sunil Dutt v. Commissioner of Customs (General) New Customs House). The same position has been reiterated by the Madras High Court in Sanco Trans Ltd. v. Commissioner of ....
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....as raised the issue on the time limit fixed under Regulation 20(5) and not 19(1). When the facts placed before this Court are very clear that the report itself was prepared and filed beyond 90 days as statutorily required and when the decision of this Court and the Delhi High Court clearly indicate that such time limit fixed is mandatory, this Court is of the view that the report so filed beyond the period of 90 days cannot be considered as a valid report and consequently further proceedings cannot be allowed to go as a follow up action. 11. Regulation 20(5) contemplates that the Commissioner shall furnish the copy of the report to the customs broker and shall require the customs broker to submit their reply within 30 days against the said report. Regulation 20(7) contemplates that the Commissioner shall after considering the report of the inquiry officer and the representation of the broker, pass such orders, as he deems it fit either revoking the suspension order or imposing penalty within 90 days from the date of submission of the report. As this Court has already found that the very filing of the report was beyond the period of 90 days as required under Regulation 20(5....
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....4 (310) E.L.T. 673 (Mad), Commissioner of Customs (Sea Port Import) v. CESTAT, Chennai, wherein the Division Bench has observed that it is not open to the Revenue to take a contra stand in respect of the time limit prescribed, since the Board Circular issued by the Central Board of Excise and Customs is binding on the Revenue. (Emphasis Supplied) 18. In 2017 (348) E.L.T. 640 (Mad), Commissioner of Customs v. MKS Shipping Agencies Pvt. Ltd., the Division Bench of this Court has observed that the Customs House Agents Licensing Regulation is having statutory force and that the 90 days prescribed under Regulation 22(1) is mandatory in nature and cannot be treated as directory. 19. Another Division Bench decision of this Court in an order made in CMA No. 730 of 2016, dated 13-10-2017, while answering the question whether or not the belated show cause notice issued beyond 90 days would be fatal to the entire proceedings, has observed that the limitation prescribed is mandatory and therefore, the mandatory requirement of the limitation cannot be ignored. In order to answer the said question, the Division Bench has elaborately considered various decisions rendere....
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....Ltd., in support of his submission that the time limit is only directory as non-compliance of the provision is not visited with some penalty. In view of the decisions made by this Court as extracted supra and more particularly, decision of this Court made in Carewell Shipping Private Limited as discussed supra arising out of the same issue, which has become final and not questioned, I find that the above decisions taking contra view not having a binding nature on this Court will not help the respondents. 24. Further, a Learned single Judge decision of the Calcutta High Court reported in 2018 (362) E.L.T. 947, OTA FalloonsForwarders Pvt. Ltd. v. Union of India, is relied on, wherein the Learned Judge has observed that the time limit prescribed in the Regulations are not mandatory, since the consequence of non-adherence to the time limit has not been provided in the regulations. 25. A Division Bench decision of this Court made in W.P. (MD) No. 11986 of 2018, etc., dated 19-7-2018, (wherein I am one of the party to the Bench) is also heavily relied on by the respondents in support of their contention that the time limit prescribed is only directory by applying the co....