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TMI Blog2017 (11) TMI 308X X X X Extracts X X X X X X X X Extracts X X X X ..... d, dehors the law, action of the authority shall be said to be an empty formality and shall not see the light of the day. The order of suspension is revoked - appeal allowed - decided in favor of appellant. - C/87317/2016 - A/89928/17/CB - Dated:- 25-9-2017 - Shri D N Panda, Judicial Member And Shri C J Mathew, Technical Member Shri V.N. Ansurkar, Advocate and for the appellant Shri Chatru Singh, Asstt. Commissioner (AR) for the respondent 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 issue of offence report 12/02/2016 2. Date of receipt of offence report by the Pr. Commissioner (General) ------ 3. Date of suspension of CHA's License 22/03/2016 4. CHA filed his defence on date of Post decisional hearing, which was held on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 :- Regulation 20. Procedure for revoking licence or imposing penalty. - (1) The Commissioner of Customs shall issue a notice in writing to the Customs Broker within a period of ninety days from the date of receipt of an offence report, stating the grounds on which it is proposed to revoke the licence or 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 specif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mpanies, 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 Government service; (d) advise his client to comply with the provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be; (e) exercise due diligence to ascertain the correctness of any information 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 clearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies 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 cannot be termed as 'directory'. It is pertinent to mention here that the CBLR, 2013 have replaced the CHA Regulations. The CHA Regulations did not have any time limit to complete the proceedings. Therefore, by a Circular 9/2010, dated 8-4-2010, the necessity to include a time limit for initiating action was addressed by the Board after field inspection and by a notification dated 8-4-2010, amendments prescribing time period for initiating action and completing proceedings was made. The same was given effect by notification d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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