9911796707
TMI Blog2017 (8) TMI 204X X X X Extracts X X X X X X X X Extracts X X X X ..... - appeal allowed - decided in favor of appellant. - C/86931/2016 - A/88400/17/CB - Dated:- 8-5-2017 - Shri D N Panda, Judicial Member And Shri C J Mathew, Technical Member For the Petitioner : Mr. O.P. Khanduja, Advocate For the Respondent : Mr. M K Mall, Assitt. Commissioner (A.R.) ORDER Per: D N Panda There is no dispute by Revenue on the date and event chart filed by the appellant depicting the status of suspension of Customs Broker License as under: Sr. No. Description of Event Date 1. Date of filing of four Bills of Entry (Value of the goods 102.52 lakhs and DBK involved Rs. 8.20 lakhs 10/02/2016 2. Search of the CHA's office (NIL PANCHNAMA DRAWN) 12/02/2016 3. Goods Examined 100% 17/02/2016 to 25/02/2016 4. Goods seized on 01/03/2016 5. Seized goods provisionally released for export on 17/03/2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gulations, 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 contemplate action against the customs broker de hors the provisions under the Customs Act. Therefore, the regulations cannot be treated as subordinate legislation. 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. 25. The power to revoke the licence is granted under Regulation 18 and the conditions and the procedure are contemplated under Regulation 20. Before, deciding the question as to whether the time limit prescribed is directory or mandatory , it is relevant to quote the Regulation 20 of CBLR, 2013 as under :- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bes a thing to be done in a particular manner, it must be performed in such a manner. Also, the use of the language shall in the regulation cannot be termed as directory as one of the consequence of the action is the revocation of the licence and it would also pave way for inaction by the officials breeding corruption. The offences complained in the cases are breach of Regulation 11, which reads as under :- 11. Obligations of Customs Broker. - A Customs Broker shall - (a) obtain an authorisation from each of the companies, firms or individuals by whom he is for the time being employed as a Customs Broker and produce such authorisation whenever required by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (b) transact business in the Customs Station either personally or through an employee duly approved by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (c) not represent a client in any matter to which the Customs Broker, as a former employee of the Central Board of Excise and Customs gave personal consideration, or as to the facts of which he gained knowledge, while in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (n) verify antecedent, correctness of Importer Exporter Code (IEC) number, identity of his client and functioning of his client at the declared address by using reliable, independent, authentic documents, data or information; and (o) inform any change of postal address, telephone number, e-mail, etc., to the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be within one month of such change. 28. It is also to be noted that 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 of proceeding by issuance of notice within 90 days. While, making out a prima facie case, the respondents ought to have, without any shadow of doubt, treated the word shall in Regulation 11 as mandatory and not directory . Therefore, 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 can ..... X X X X Extracts X X X X X X X X Extracts X X X X
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