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TMI Blog2015 (12) TMI 1432X X X X Extracts X X X X X X X X Extracts X X X X ..... scribing a period for the performance of such public duty. - an independent right is issued to the Commissioner to initiate action dehors the enquiry under other Regulations and the Customs Act. The regulations does not only contemplate action against the erring Brokers, but also contemplates timely action. No doubt that action is to be initiated against the erring brokers as laid down by this Court in the case of Kamatchi Agencies cited 2000 (11) TMI 144 - HIGH COURT OF JUDICATURE AT MADRAS, but the same has to be in strict compliance with the provisions. 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. Every act of breach by the Broker would entitle the authorities to initiate proceedings from the date of knowledge of the offence. It is only if the time limit is strictly followed, swift action can be initiated against the Customs Brokers and the authorities can also be made accountable. The Regulations only contemplate initiation o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, statements were recorded from the representatives of the importers as well as the Manager of the Petitioner. After completing investigation, the respondent issued a suspension order dated 27.3.2015, suspending the operation of the licence of the Petitioner with immediate effect, by invoking the provisions of Regulation 19(1) of the Regulations. The Petitioner submitted a detailed written submissions on 5.5.2015, denying the allegations. However, the respondent passed the impugned order dated 13.7.2015, ordering continuation of the suspension order in terms of Regulation 19(2) of the Regulations. Along with the said order, the Respondent also issued the impugned show cause notice dated 13.7.2015, calling upon the Petitioner to show cause as to why the license issued to the Petitioner should not be revoked and security deposited by them should not be forfeited or penalty should not be imposed under Regulation 18, for their failure to comply with the Provisions of the Regulations. The Petitioner challenged the suspension order as well as the notice in a single Writ Petition in WP.No.22784/2015, which was dismissed as withdrawn, with a liberty to file separate writ petitions. Henc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice dated 13.7.2015 has been issued for conducting enquiry proceedings under CBLR, 2013. The Petitioner cannot challenge the very same proceedings, when the same were already challenged in a Writ Petition, which was dismissed as withdrawn. In such facts, these Writ Petitions are liable to be dismissed. 4. The learned counsel for the Petitioner has contended that the impugned notice under Regulation 20 has been issued, beyond the statutory period of 90 days, which is mandatory in nature and hence, it is barred by limitation, inasmuch as the impugned notice dated 13.7.2015 was issued after 90 days from the date of the suspension order dated 27.3.2015 and the letter of the investigating agency dated 17.3.2015. The impugned order, ordering for continuation of suspensin of licence, is also not in confirmity with the provisions of Regulation 19(2) of CBLR, 2013 and barred by limitation, inasmuch the same was passed beyond 15 days from the date of hearing i.e. 11.06.2015. The learned counsel for the Petitioner further contended that Regulation 19(1) clearly stipulates that only in appropriate cases where immediate action is necessary, licence is to be suspended and that inasmuch as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther mandatory enactments shall be considered directory only or obligatory with an implied nullification for disobedience. It is the duty of Courts of' justice to try to get at the real intention of the legislature by carefully attending to the whole scope. Such intention of the legislature is therefore to be ascertained upon a review of the language, subject matter and importance of the provision in relation to the general object intended to be secured, the mischief, if any, to be prevented and the remedy to be promoted by the Act . 9. In AIR 1999 SC 1281 (Babu Verghese and others Vs. Bar Council of Kerala), it has been held as under:- 31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any Statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor vs. Taylor (1875) 1 Ch.D 426 which was followed by Lord Roche in Nazir Ahmad vs. King Emperor 63 Indian Appeals 372 = AIR 1936 PC 253 who stated as under : Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. 10. In 2014 310 ELT ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a public duty and the case is such that to hold null and void acts done in neglect of this duty would work serious general inconvenience or injustice to persons who have no control over those entrusted with the duty and at the same time would not promote the main object of legislature, it has been the practice of the courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts done. 13. In AIR-1965-SC-895 (Raza Buland Sugar Co. Ltd Vs. Municipal Board, Rampur) and AIR-1975-SC-2190 (State of Mysore Vs. V.K.Kangan), the Honourable Supreme Court held as under:- as to whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent of the law maker and that has tobe gathered not only from the phraseology of the provision but also by considering its nature, its design and the consequence which would follow from construing it in one way or the other. 14. In 2003-8-SCC-498 (P.T.Rajan Vs. TPM Sahir), it has been held that test of mandatory or directory, context, purport and object of the statue are to be ascertained. Procedural provision even if uses shall may be construed as directory ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 57. In Raza Buland Sugar Co. Ltd v. The Municipal Board [AIR 1965 SC 895], a Constitution Bench of the Supreme Court held that the question whether a particular provision is mandatory or directory, cannot be resolved by laying down any general rule and that it would depend upon the facts of each case. The Court has to consider the purpose for which the provision had been made, its nature, the intention of the legislature in making the provision, the serious general inconvenience or 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 vs. Union of India [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 p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he case of P.T.Rajan Vs. TPM Sahir and others (2003-8-SCC-498) categorically held that test of mandatory or Directory. Context, purport and object of the statute to be ascertained. Procedural provision een if uses shall may be construed as directory if no prejudice is cause. Provision requiring statutory functioning to perform a statutory function within the prescribed time to be considered as directory . 19. In RC.No.4 of 1997 (order dated 12.10.2000) (Sri Kamatchi Agencies Vs. Commissioner of Customs, Chennai), this Court has elaborately discussed the role of CHA/Customs Broker in the clearance of goods for import/export, which reads as under:- The very purpose of granting a licence to a person to act as Custom House Agent is for transacting any business relating to the entry or departure of conveyance or the import or export of goods at any customs station. For that purpose, under Regulation 9 necessary examination is conducted to test the capability of the person in the matter of preparation of various documents determination of value procedures for assessment and payment of duty, the extent to which he is conversant with the provisions of certain enactments etc. Ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 vs. Union of India [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. 58. In Sharif-Ud-Din vs. Abdul Gani Lone [AIR 1980 SC 303], the 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 follows:- In order to find out the true character of the legislation, the Court has to ascertain the object which the provision of law in question i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... carried out at a subsequent stage unless by according such permission to rectify the error later on, another rule would be contravened. Whenever a statute prescribes that a particular act is to be done in a particular manner and also lays down that failure to comply with the said requirement leads to a specific consequence, it would be difficult to hold that the requirement is not mandatory and the specified consequence should not follow. 22. In 1998-7-SCC-123 (N.Balakrishnan Vs. M.Krishnamurthy), it has been held as under:- 9. It is axiomatic that condonation of delay is a matterof discretion of the court Section 5 of the Limitation Act does not say that such discretion can be exercised only if the delay is within a certain limit. Length of delay is no matter, acceptability of the explanation is the only criterion. Sometimes delay of the shortest range may be uncondonable due to want of acceptable explanation whereas in certain other cases delay of very long range can be condoned as the explanation thereof is satisfactory. Once the court accepts the explanation as sufficient it is the result of positive exercise of discretion and normally the superior court should not dis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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 defence and also to specify in the said statement whether the Customs Broker desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs. 26. Upon perusal of the above regulation, it can be seen that an independent right is issued to the Commissioner to initiate action dehors the enquiry under other Regulations and the Customs Act. The regulations does not only contemplate action against the erring Brokers, but also contemplates timely action. No doubt that action is to be initiated against the erring brokers as laid down by this Court in the case of Kamatchi Agencies cited supra, but the same has to be in strict compliance with the provisions. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mation which he imparts to a client with reference to any work related to clearance of cargo or baggage; (f) not withhold information contained in any order, instruction or public notice relating to clearance of cargo or baggage issued by the Commissioner of Customs, from a client who is entitled to such information; (g) promptly pay over to the Government, when due, sums received for payment of any duty, tax or other debt or obligations owing to the Government and promptly account to his client for funds received for him from the Government or received from him in excess of Governmental or other charges payable in respect of the clearance of cargo or baggage on behalf of the client; (h) not procure or attempt to procure directly or indirectly, information from the Government records or other Government sources of any kind to which access is not granted by the proper officer; (i) not attempt to influence the conduct of any official of the Customs Station in any matter pending before such official or his subordinates by the use of threat, false accusation, duress or the offer of any special inducement or promise of advantage or by the bestowing of any gift or f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 29. In the case on hand, the impugned show cause notice dated 13.7.2015 has been issued after 90 days from the date of the suspension order dated 27.3.2015 and the report of the investigating agency dated 17.3.2015 or in other words, from the date of knowledge of the offence. In this regard, the learned counsel for the respondents have raised the following objections, viz. (a) the Saturdays, Sundays and national holidays have to be excluded, (b) the period would start to run o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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