TaxTMI 
TaxTMI 
TaxTMI 
2025 (11) TMI 1811
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....ms Act, 1962. The licence, suspended on 18th November 2022 on receipt of 'offence report', was restored thereafter on 25th January 2023. 2. Learned Counsel for appellant submitted that they had been charged with breach of regulation 10(d), 10(e), 10(f), 10(k) and 10(n) of Customs Broker Licensing Regulations, 2018 which the enquiry authority held as proved and, in agreement thereto, the licensing authority imposed detriments now under challenge. It was also submitted that commencement of enquiry long after the allegedly improper exports of 2013 and 2014-15 respectively, and for having handled 14 shipping bills on which Rs. 19,13,000 had been claimed as drawback and 34 shipping bills against which drawback of Rs. 33,10,000 had been availed, was clearly inappropriate and disproportionate. It was further contended that the delay in completion of enquiry proceedings vitiated the consequences as set out by the Hon'ble High Court of Bombay in Principal Commissioner of Customs (General), Mumbai v. Unison Clearing P Ltd [2018 (361) ELT 321 (Bom)]. 3. We have heard Learned Authorized Representative. 4. We find that charges in notice, issued on 9th March 2023, was subjected to e....
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....ng that acts, of omission or commission, on the part of the customs broker was cause of one or more of the delays. The Hon'ble High Court of Bombay, in re Unison Clearing P Ltd, has held that '10. The question, therefore, is whether the provision contained in Regulation 20 is mandatory or directory. The use of the word "shall" in normal parameters be construed as mandatory and the word "shall" would be required to be read as "must" unless and until it was essentially read as "may" to achieve the legislative intention and to be construed in accordance with its use in the provision. However, it cannot be laid down as an universal rule that whenever the word "shall" is used in a statute, it would only mean to be of mandatory nature, whereas the word "may", would be indicative of being directory. However, use of such word is not the sole test or criteria, but the said word shall be construed by taking into consideration the nature, design and the consequences, which would flow from construing it one or the other way. xxxxx 13. The Learned Counsel appearing for the licensee, by relying on the said judgments would argue that the said Hon'ble High Courts hav....
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.... where non-compliance with the time frame and even deviation by a single day would resultantly invalidate the entire action and the licence which is under suspension or which is revoked, is liable to be restored. The procedural formality as required to be complied within the time frame prescribed in the regulation, even if it is deviated for whatsoever reason beyond the control of the revenue or the Customs House Agent would result into consequences of declaring the entire action invalid if the provision is construed as mandatory. On the other hand, if the provision the construed as directory, the Customs House Agent would be deprived of his licence for considerable long time, if the time schedule is not adhered to the Revenue at its sweet choice would prolong the procedure and which is a likely situation, no attempts would be made to complete the inquiry within the stipulated period. This is what has weighed in the mind of the High Courts while dealing with the said regulation and holding the same to be mandatory The catena of judgments on which reliance has been placed to declare the provision as mandatory have referred to the extraordinary delay caused at the i....
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....and it would result in letting the miscreant set loose by taking benefit of deviation of the time schedule. The said CESTAT West Zonal Bench, Mumbai in Unison Clearing Pvt. Ltd v. Commissioner of Customs (General), Mumbai (supra) has in detail dealt with the Regulation 22 and has examined whether it has to be construed as mandatory or directory. Relying on catena of judgments delivered by the Hon'ble Apex Court, and specifically in Delhi Air Take Services Pvt. Ltd. and Another v. State of West Bengal and Another, CESTAT has concluded that while deciding whether the time period is directory or mandatory, it would be seen that the purpose of law prescribing it as mandatory and consequently the absence of provisions of consequences in case of noncompliance with the requirement would indicate that the provisions are directory irrespective of use of the word "shall". The CESTAT has concluded that if the time limits are construed as mandatory and the matter is put to an end, the purpose of Regulation would be defeated and so would be the intention behind framing such a Regulation. On the other hand, if there is no consequence stated in the regulation for non-adherence is a time period fo....
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.... (General), Mumbai, the Tribunal, in AB Paul & Company v. Principal Commissioner of Customs (General), Mumbai, held that '14. Though the said decision has categorically held that timelines in the Regulations are to be deemed as 'directory', the context is not without significance. It was held that setting aside of revocation, at the appellate level, by resort to ascertainment of conformity with time-lines, would defeat the intent of Regulations that is substantively elaborate in enacting framework for supervisory oversight of customs brokers. Nonetheless, the Hon'ble High Court of Bombay also noted that, without justification for delay in completion of proceedings demonstrated by findings on the contributory negligence of the notice-broker, the licencing authority is not permitted to take shelter behind 'directory' nature of the time-lines. Impliedly, the time-lines are deemed to be directory at the appellate stage and an order of detriment under the authority of Regulations is, in circumstances of non-adherence to times lines, not tenable in the absence of justification for delay. 15. The impugned order is clearly bereft of such finding. Learned Authorised Repres....