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TMI Blog2017 (1) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... ied to the appellant due to failure of the Revenue to follow the time limits prescribed in the law - In the process on the one hand the Custom Broker who are unscrupulous get the advantage of these delays in their defence, the good ones who are not guilty suffer for long periods of time. In both the cases the justice is not delivered. It was obvious that there is lack of supervision and effort to adhere to the time limit prescribed by law. This will assume serious implications especially in view of the fact that Courts have held time limit to be mandatory in nature - The Revenue seeks the time of 8 to 12 months just to compile the data of such delays. Suffice to say in such a serious issue needs immediate attention of CBE&C and Chief Commissioner of Customs. As a result of such delay, a number of serious offenders will get the benefit and be left of the hook and go scot free, which is not the intent of lawn Similarly, due to the delays, people who are not guilty will continue to suffer the suspension and revocation on account of delays by Revenue due to lack of responsibility. The license which is revoked by the impugned order is restored forthwith and Commissioner of Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly in justified cases depending upon the seriousness or gravity of offence. However, it has been decided by the board that a post-decisional hearing should be given the Board that a post-decisional, hearing should be given in all such cases so that errors apparent, if any can be corrected and an opportunity for personal hearing is given to the aggrieved party. Further, Board has also prescribed certain time limits in cases warranting immediate suspension under Regulation 20(2). Accordingly, the investigating authority shall furnish its report to the Commissioner of Customs who had issued tile CHA license (Licensing authority), within thirty days of the detection of an offence. The Licensing authority shall take necessary immediate suspension action within fifteen days of the receipt of the report of the investigating authority. A post-decisional hearing shall be granted to the party within fifteen days from the date of his suspension, The Commissioner of Customs concerned shall issue an Adjudication Order, where it is possible to do so, within fifteen days from the date of personal hearing so granted by him. She also highlighted the amendment made in the Custom House Agent Lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Hon ble High Court: (i) In the case of Overseas Air Cargo Services - 2016 (340) ELT 119 (Del) (ii) Hon ble High Court of Madras in the case of Saro International Freight System - CDJ-2015 MHC-7964. (iii) Hon ble High Court of Delhi in the case of INDAIR Carrier Pvt. Ltd. - 2016 (337) ELT 41 (Del) Learned Counsel argued that in view of the decision of Hon ble High Court of Delhi and Madras, the time Omits prescribed under the CBLR, 2013 have to be considered mandatory and therefore the proceedings against them need to be set aside as the said time limits have not been followed; 3.1 Ld AR relied on the decision of the Tribunal in the case of Unison Clearing - 2015-TIOL-1253-CESTAT-MUM to assert that the time limits prescribed under CBLR, 2013 are not mandatory but directory in nature. He argued that in view of the decision of coordinate bench of this Tribunal the same needs to be followed. Ld AR further relied on decision of Hon ble Apex Court in the case of Chairman of LIC vs. A. Masilamani in Civil Appeal No. 8263 of 2012 vide Order dated 23.11.2012 . In the said decision, in a disciplinary matter it was held as under: - The Court/Tribunal should ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssing of Order by the Commissioner. Within 90 days from the date of submission of the Inquiry Report. TOTAL DURATION 270 DAYS or 9 MONTHS. In the instant case, the following is the time limit of event in the case: Sr. No. Event Date of occurrence Prescribed date Regulation 22 Delay 1. Intimation to Commissioner of Customs (Gen) 24.04.2009 2. Suspension of License 11.05.2009 3. Confirmation of suspension 15.12.2009 4. Notice under CHALR 15.04.2010 24.07.2009 The Commissioner of Customs (G) is required to issue the notice within 90 days of receipt of offence report Approx. 265 days 5. Inquiry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid case, Hon ble High Court of Kolkata was interpreting the time limits prescribed by an instruction issued by CBE C. Hon ble High Court observed as under: The instructions issued by the Central Board of Excise and Customs are binding on the Department. The time stipulations in the Circular apparently directory and not mandatory, as will be evident from the language and tenor thereof. Furthermore, the Circular does not provide for the consequences of failure to adhere to the time schedule At the material time, there was no time limit prescribed under CBLR, 2013 and in these circumstances the guidelines issued by CBE C by way of an instruction, to expedite the cases can only be considered directory. The instant case involves period when time limit have been prescribed by legislation under CBLR, 2013. In view of the above, the decision of Hon'ble High Court of Kolkata is not applicable in the instant case. 4.3 Ld AR has also relied on the decision of Hon ble High Court of Delhi in the case of Burleigh International (supra). In the said decision, the Hon ble High Court observed as follows: 3. This Court has considered the submissions. In the absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspension and revocation of CHA licence. In Para 7.1 of the said Circular, it was noted as under: 7 1 The present procedure prescribed for completion of regular suspension proceedings takes a long time since it involves inquiry proceedings, and there is no time limit prescribed for completion of such proceedings, Hence, it has been decided by the Board to prescribe an overall time limit of nine months from the date of receipt of offence report, by prescribing time limits at 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/DCon 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. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulation 20 (1), the use of the term shall cannot be termed as directory . Under such circumstances, the rule can only be termed as Mandatory . 5. We find that in this case Revenue has taken 1221 days to complete the actions for which a period of 270 days is prescribed in CBLR, 2013. There has been a delay of almost three years and more than four times the prescribed time has been taken. Revenue has sought to explain this due to the delay on the part of appellant as observed in para 3 above. It is seen that the regulations clearly use the word Shall while prescribing the time limits. This aspect has also been examined by Hon ble High Court of Madras in the case of Saro International Freight System (supra), Hon ble High Court has observed as follows: - 27 . The purpose, for which such 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 As laid down by the Apex Court in the j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued the circulars dated 8.4.2010. It is not unlikely that many of the delays are deliberate and intended to help the nefarious custom broker or harass the good ones. In this context, it is felt that this data is relevant. In exercise of powers under CESTAT Procedure Rules, 1982, we direct the Revenue to present the data regarding observation of various time limits prescribed under regulations. This data may be given in respect of cases taken up or pending in the Mumbai Customs since the amendment made by Notification No.30/2010-Cus dated 8.4.2010 till 30.6.2016. The respondents are directed to produce the said data on 23.8.2016 at the time of next hearing. By way of Miscellaneous Application Revenue has submitted only partial data consisting of 15 occasions. It is seen that the following is the summary of the data: - Sr. No. CHA name No. Date of receipt of offence report Date suspension of license Date issue of Articles of Charges Date appointment of IO Date of appointment of PO Date of submission of Inquiry Report 1. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, 11/887 21.3.2011 31.3.2011 8.11.2011 8.11.2011 8.11.2011 Inquiry is still Pending 13. SSS Sai Services Pvt. Ltd., 11/999 9.6.2011 22.6.2011 20.9.2011 20.9.2011 20.9.2011 26.12.2012 14. K.M. Commercial Servies Pvt. Ltd., 11/907 30.8.2012 13.9.2012 2.11.2012 2.11.2012 2.11.2012 18.10.2013 15. RR Joshi Shipping Forwarding Pvt. Ltd., 11/486 8.11.2011 2.12.2011 25.1.2012 25.1.2012 25.1.2012 11.12.2012 It is seen that inquiries initiated in 2010/2011 are still pending in 2016. There is absolutely no respect for the CBEC circulars or the CBLR 2013. This data appears to be just the tip of the iceberg as the revenue is seeking further time of 8 to 12 months just to compile the data of other such files re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys and the Brokers are rendered without work for long periods of time extending upto 5 years and still continuing as the enquiry has not been completed. In the process on the one hand the Custom Broker who are unscrupulous get the advantage of these delays in their defence, the good ones who are not guilty suffer for long periods of time. In both the cases the justice is not delivered. 5.3 It was obvious that there is lack of supervision and effort to adhere to the time limit prescribed by law. This will assume serious implications especially in view of the fact that Courts have held time limit to be mandatory in nature. This data of 15 cases is only tip of the iceberg. By the miscellaneous application filed, the Revenue seeks the time of 8 to 12 months just to compile the data of such delays. Suffice to say in such a serious issue needs immediate attention of CBE C and Chief Commissioner of Customs. As a result of such delay, a number of serious offenders will get the benefit and be left of the hook and go scot free, which is not the intent of lawn Similarly, due to the delays, people who are not guilty will continue to suffer the suspension and revocation on account of delays ..... X X X X Extracts X X X X X X X X Extracts X X X X
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