2015 (12) TMI 1148 - HC - Customs

Scope of Provisions of CBLR 2013 - Mandatory or Directory - Maintainability of petition Held that - Writ petitions have been filed, questioning the authority to issue the notice and that the respondent has already predetermined the issue. Though this court is aware of its limitation, while entertaining a writ petition against a notice, the show cause notices in the present cases are clearly predetermining the issue and when the sustainability of the notice is questioned as being barred by law, this court is of the view that directing the petitioners to submit their objections would be a futile exercise. Hence, this Court is of the view that the writ petitions are maintainable. Customs Broker Licensing Regulations, 2013 were promulgated in exercise of powers conferred under Sub-Section (2) of Section 146 of the Customs Act,1962. It is only under the regulations, the licence is granted and the regulations also contain various provisions to regulate the affairs of the customs broker including the revocation of the licence. The Regulations contemplates action against the customs broker dehors the provisions under the Customs Act. Therefore, the regulations cannot be treated as sub-ordinate legistlation. Moreover, every implementing authority of any fiscal statute is only performing a public duty. Therefore, it cannot be said that the provision is to be termed as directory just because its adherence is in the nature of performance of a public duty. What is to be considered is the object of the enactment in prescribing a period for the performance of such public duty. Purpose for which time limit has been prescribed is to curb the smuggling of goods and in the result to cancel the licences of the brokers if they are involved and to impose penalty. The interpretation of a statute must always be to give a logical meaning to the object of the legislation and the aim must be to implement the provisions rather than to defeat it. When a time limit is prescribed in Regulations, which empowers action in Regulation 18 and procedure in Regulation 20 (1), the use of the term shall cannot be termed as directory . It is pertinent to mention here that the CBLR, 2013 have replaced the CHA Regulations. The CHA regulations did not have any time limit to complete the proceedings. Therefore, by a Circular 09/2010 dated 08.04.2010, the necessity to include a time limit for initiating action was addressed by the Board after field inspection and by a notification dated 08.04.2010, amendments prescribing time period for initiating action and completing proceedings was made. The same was given effect by notification dated 20.01.2014. Whereas, under the CBLR, 2013 having found the necessity to prescribe a period, the Central Board, the statutory authority had included the same in the Regulations itself, when they were brought into force. Therefore, when a time limit is prescribed in Regulations, which empowers action under Regulation 18 by following the procedure in Regulation 20 (1), the use of the term shall cannot be termed as directory . Under such circumstances, the rule can only be termed as Mandatory . It is only when the provision is strictly adhered to the object can be achieved. Moreover, such an exercise would open the Pandora box. Hence, this court is not inclined to exercise the discretion in favour of the respondents. - writ petitions are liable to be set aside - Decided in favour of appellant.

Summary

Issues Involved:

1. Maintainability of writ petitions challenging show cause notices.
2. Whether the period of 90 days prescribed in Regulation 20(1) of CBLR, 2013 is 'directory' or 'mandatory'.
3. Whether the notices have been issued beyond the stipulated time.

Issue-wise Detailed Analysis:

1. Maintainability of Writ Petitions Challenging Show Cause Notices:

The court considered whether the writ petitions challenging the show cause notices were maintainable. The petitioners argued that the notices were barred by law and issued without authority, thus invoking writ jurisdiction under Article 226. The respondents contended that the writ petitions were premature and that there was an alternative remedy available. The court referenced various judgments, including Siemens Ltd. vs. State of Maharashtra and Oryx Fisheries Private Ltd. vs. Union of India, which established that a writ petition is maintainable if the notice is issued without jurisdiction, beyond the prescribed period, with a prejudiced mind, or as an abuse of process of law. The court concluded that the writ petitions were maintainable as the notices were allegedly barred by law and issued with a predetermined mind.

2. Whether the Period of 90 Days Prescribed in Regulation 20(1) of CBLR, 2013 is 'Directory' or 'Mandatory':

The petitioners argued that the 90-day period prescribed in Regulation 20(1) is mandatory, relying on various judgments, including A.H. Ahamed & Co. vs. Commissioner of Customs (Imports) Chennai and Babu Verghese and others vs. Bar Council of Kerala, which emphasized that when a statute prescribes a thing to be done in a particular manner, it must be done in that manner. The respondents contended that the period is directory, citing judgments like Dattatraya Moreshwar vs. The State of Bombay and P.T. Rajan vs. TPM Sahir, which suggest that procedural provisions may be construed as directory if no prejudice is caused. The court concluded that the time limit prescribed in Regulation 20(1) is mandatory, emphasizing that the use of the term 'shall' indicates a mandatory requirement, and non-compliance would defeat the purpose of the regulation.

3. Whether the Notices Have Been Issued Beyond the Stipulated Time:

The court examined whether the notices were issued beyond the stipulated 90-day period. The respondents raised several objections, including the exclusion of weekends and holidays, the start date being the receipt of the offense report, and waiver of the period by the petitioners. The court rejected these objections, stating that the statute does not prescribe the exclusion of non-working days, and the period starts from the date of knowledge of the offense. The court also found no evidence of waiver by the petitioners. Consequently, the court held that the notices were issued beyond the stipulated time, rendering them without jurisdiction.

Conclusion:

The court allowed the writ petitions, setting aside the impugned orders and notices in all the writ petitions. The court also set aside the suspension order in WP.No.8946/15, concluding that no further proceedings could be initiated under Regulation 20.