9911796707
TMI Blog2017 (1) TMI 282X X X X Extracts X X X X X X X X Extracts X X X X ..... dure 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/DC on the grounds not accepted by CHA, by reducing the time to thirty days in Loth the cases under the Regulations, 7.2 In cases where immediate suspension action against a CHA is required to be taken by a Commissioner of Customs under regulation 20(2), there is no need for following the procedure prescribed under Regulation 22 since such an action is taken immediately and only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner. Within 90 days from date of submission of the Inquiry Report. TOTAL DURATION 270 DAYS or 9 MONTHS In order to ascertain if such inordinate delays as in the instant case are exceptional or such delays are regular, Revenue was asked to submit data to ascertain if they are following time limits and if this case was an exception to the rule. Data was sought of such cases from the period when such time limits were introduced under the CBLR, 2013. Vide miscellaneous application No. C/MA(Ors)/93379/16, Revenue has submitted the said data consisting of 15 records. Revenue has also stated that for compiling the data they require time of 8 to 12 months. 2. Learned Counsel for the appellant argues that the time limit prescribed under the CBLR, 2013 are mandatory in nature as has been held by the following decisions 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dmittedly the time limits prescribed under the CBLR, 2013 have not been followed. The CBLR, 2013 prescribed the following time limits: CHALR 2004 CBLR, 2013 Purpose Specified Time Period 22(1) 20(1) Issuance of Show Cause Notice to the CHA/CB by the Commissioner. Within 90 days from the date of receipt of an offence report. 22(5) 20(5) Preparation of Report of Inquiry by Deputy/Assistant Commissioner. Within 90 days from the date of issuance of the Show Cause Inquiry Notice. 22(7) 20(7) Passing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 any indication, within the Regulation, as to the consequence of not passing an order within the time stipulated, the Court is unpe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. These include the decision in Schankar Clearing & Forwarding v. C.C. (Import & General) - 2012 (283) E.L.T. 349 (Del.), the order dated 25th April, 2016 passed by this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 judgments relied upon by the learned counsel for the petitioners, when a statute prescribes a thing to be done in a particular manner, it must be performed in such a manner. Also, the use of the language ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elevant. 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. BabajiShivram clearing & Carriers, 11/262 25.03.2011 28.3.2011 28.9.2012 13.2.2013 13.2.2013 Inquiry is still pending 2. National Shipping Agency, 11/289 7.10.2011 25.10.2011 20.2.2014 20.2.2014 11.7.2014 27.2.2015 3. Franc Cargo Clearing Services, 11/964 21.7.2010 3.8.2010 4.2.2015 4.2.2015 4.2.2015 Inquiry is still Pending 4. Vilas Trans ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Article 21 is elaborated by saying that the eviction of pavement and slum dweller will lead, in a vicious circle, to the deprivation of their employment, their livelihood and therefore to the right to life. Our attention is drawn in this behalf to an extract from the judgment of Douglas J in Baksey v. Board of Regents, 347 M.D. 442 (1954) in which the learned Judge said: "The right to work I have assumed was the most precious liberty that man possesses. Man has indeed, as much right to work as he has to live, to be free and to own property. To work means to eat and it a/so means to live." The right to live and the right to work are integrated and interdependent and, therefore, if a person is deprived of his job as a result of his eviction from a slum or a pavement, his very right to life is put in jeopardy. It is urged that the economic compulsions under which these persons are forced to live in slums or on pavements impart to their occupation the character of a fundamental right." In the instant case the appellant has been out of work for long period of time. In most such cases the licences are suspended as soon as the inquiry starts and remain suspended till the enquiry is c ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
