2022 (12) TMI 1301 - HC - Customs

Cancellation/revocation of customs broker licence - main ground on which the impugned order assailed is the bar of limitation - HELD THAT - In the present case, the date of license report is unknown and in this context, it would be relevant to refer to a decision of a learned Single Judge of this Court in the case of M/S. AM. AHAMED CO. VERSUS THE COMMISSIONER OF CUSTOMS (IMPORTS) 2014 (9) TMI 237 - MADRAS HIGH COURT . This Court, in an identical situation, where the date of offence report was unavailable, has proceeded on the basis that in such a situation it would be appropriate to adopt the date of suspension as the relevant date. This order is stated to have attained finality by both learned counsel before me and thus the settled position as on date is to the effect that where the date of offence report is unavailable, a legally appropriate substitute would be the date of suspension for purposes of computation of limitation. In the present case, the date of order of suspension is 20.09.2018 and hence, the overall period of nine months, as stipulated in para 7.1 of the aforesaid Circular, expires on 19.06.2019. The impugned order being passed on 21.10.2019, is barred by limitation on this ground as well - In the considered view of the Court, delay, whether attributable to the revenue or, for that matter, the broker, would not extend the timelines as set out both in the Circular and Regulations. No doubt there was no response on the part of the broker in responding to the enquiry report. However, nothing prevented the officer to have taken action scrupulously in line with the time periods set out under Regulation 17 of CBLR Regulations and para 7.1 of the Circular, even sans any co-operation on the part of the noticee. The impugned order is found to be barred by limitation and is set aside on this score. This writ petition is allowed.

Summary

Issues:
Challenge to order-in-original under Customs Broker Licensing Regulations, 2018 based on bar of limitation.

Analysis:
The judgment concerns a challenge to an order-in-original under the Customs Broker Licensing Regulations, 2018 (CBLR Regulations) dated 21.10.2019, primarily on the grounds of limitation. The procedure for cancellation/revocation of a license is governed by Regulation 17 of the CBLR Regulations. Regulation 17(1) mandates the issuance of a notice within 90 days from the date of receipt of an offense report, calling for a written statement of defense from the customs broker within 30 days. The broker is entitled to request a personal hearing as well.

Regulation 17(2) directs the conducting of an inquiry by the Deputy Commissioner or Assistant Commissioner of Customs upon receipt of the written statement or in the absence of such a statement within the stipulated time. Regulation 17(3) requires the enquiring officer to consider all evidences, oral testimonies, and hear the broker to ascertain the facts correctly. Furthermore, Regulation 17(4) allows the broker the opportunity for cross-examination with reasons required for any denial of such request.

Subsequently, Regulation 17(5) necessitates the preparation of an enquiry report by the Deputy Commissioner or Assistant Commissioner within 90 days from the issue of the notice under Regulation 17(1). The broker must be provided with a copy of this report for submission of representation. However, in the case at hand, the petitioner did not respond to the enquiry report dated 28.02.2019, which was furnished on 07.03.2019.

The final stage of the procedure under Regulation 17(7) requires the Principal Commissioner/Commissioner of Customs to consider the report and the broker's representation, if any, before passing orders within 90 days from the submission of the enquiry report. Notably, the failure to schedule a personal hearing within the prescribed 90-day period rendered the impugned order dated 21.10.2019 beyond the stipulated time under the CBLR Regulations.

Additionally, Circular No.9/2010-cus dated 04.04.2010 sets an overall time limit of nine months from the date of receipt of an offense report for the completion of proceedings. In the absence of the offense report date, the court adopted the date of suspension as the relevant date for limitation computation. As the impugned order was passed on 21.10.2019, it was found to be time-barred under the Circular as well.

The judgment emphasizes that delays, whether caused by the revenue or the broker, cannot extend the prescribed timelines under the Circular and Regulations. The court rejected the argument that the time limit under Regulation 17 is merely directory, citing a relevant decision of a Division Bench of the Court. Ultimately, the impugned order was set aside as being barred by limitation, and the writ petition was allowed with no costs incurred.