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TMI Blog2019 (5) TMI 80X X X X Extracts X X X X X X X X Extracts X X X X ..... d in the said Regulation. The SCN issued to the Custom Broker is barred by limitation - Appeal allowed - decided in favor of appellant. - Customs Appeal No. 50490 of 2019 [DB] - FINAL ORDER NO. 50592/2019 - Dated:- 26-4-2019 - MR. ASHOK JINDAL, MEMBER (JUDICIAL) And MR. C.L. MAHAR, MEMBER (TECHNICAL) Shri Priyadarshi Manish, Advocate for the Appellant Shri Sunil Kumar, Authorised Representative for the Respondent ORDER ASHOK JINDAL M/s RP Cargo Handling Services is in Appeal against the impugned order wherein the Custom Broking License has been revoked by the Commissioner of Customs (Airport General). 2. The facts of the case are that on the basis of investigation report received from Directorate of Revenue Intelligence, New Delhi dated 10 May, 2018 in the office of the Commissioner on 18 May, 2018 in respect of the appellant that Shri Ramesh Wadhera and Shri Sanjeev Maggu were engaged in evasion of custom duty by way of diverting the goods stored in Custom Bonded Warehouse into domestic market without payment of custom duty. It was further revealed that document ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, the same is barred by limitation. Accordingly, the impugned order is to be set aside. 5. Shri Sunil Kumar, learned Authorised Representative appeared on behalf of the Revenue who submits that as per Regulation 20 of Customs Brokers Licensing Regulation, 2013, the Commissioner is required to issue the notice in writing within 90 days from the date of receipt of an offence report. Admittedly, the notice has been handed over to postal authorities on 14 August, 2018. Therefore, the same has been issued in time. To support his contentions, he relied on the decision of the Hon ble High Court of Delhi in the case of Purushottam Jajodia Vs. Dir. Of Revenue Intelligence, New Delhi 2014 (307) E.L.T. 837 (Del.). 6. At this juncture, Shri Amresh Jain, learned Authorised Representative intervened and submits that the Section 153 of Customs Act, 1962 prescribes the procedure for service of any notice issued under the Customs Act, 1962 and as per the said provision any Order/decision/notice issued under this Act shall be served. He further, submits that any notice issued under the Act has to be served subsequently and issuance of notice is condition prece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suance of Notice is condition precedent to the service of notice. In other words, no Notice can be served without issuance of same by the concerned Competent Authority. The Event of issuance has to precede the Event of service of notice. Above is a procedure prescribed under Customs Act 1962 and may not be pari materia to the procedures prescribed in other Acts. A particular Act passed by Parliament is an independent Act with respect to the procedure prescribed therein. Further the General Clauses Act also gets applied only when the procedure is not specified in that particular Act. The ratio laid down by the Hon ble Supreme Court in the two judgments relied upon by the Appellant is only with respect to the procedure prescribed in those very Acts viz. (i) Delhi Municipal Corporation Act 1957 (ii) Wealth Tax Act 1957 Section 126(2) of the Delhi Municipal Corporation Act 1957 is reproduced as follows:- 126 (2). Before making any amendment under sub-section (1) the Commissioner shall give to any person affected by the amendment, notice of not less t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act. In view of above it is prayed that the Impugned Order may be upheld on the issue of limitation. 9. On hearing both the sides, we find that the short issue involved in the matter is that in terms of Regulation 20 of Customs Broker Licensing Regulation, 2013 whether notice issued by Commissioner of Customs in writing to the Custom Broker within 90 days from the date of receipt of an offence report is required to be served within 90 days or not? 10. After hearing the learned Authorised Representatives, we find that in this case, the arguments are required to be heard with regard to the procedure of serving notice on the Custom Broker in terms of Regulation 20 of Custom Broking Licensing Regulation, 2013 whereas learned Authorised Representative, Shri Amresh Jain has not argued with regard to the provisions 20 of Custom Broker Licensing Regulation, 2013 and discussed the procedure under Section 153 of Customs Act, 1962 for service of the Order/summon/notice which means that without knowing the facts of the case he started arguing the matter. Such type of a situation are required to be avoided. In fact, an Authorised Repres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d was not used in the narrow sense of sent but that the said expression had received, before the Indian Income Tax (Amendment) Act, 1959, a clear judicial interpretation. Subba Rao J., as he then was, dealing with the purpose which the word issue was intended to serve, after referring to Sri Niwas v. I.T.O. cited in the judgement under attack and a Bombay decision, observed at page 108: The intention would be effectuated if the wider meaning is given to the expression issued . The dictionary meaning of the expression issued takes in the entire process of sending notices as well as service thereof. The said word used in Section 34(1) of the Act itself was interpreted by Courts to mean served . 14. Further in the case of Municipal Corporation of Delhi Vs. Dharma Properties Private Limited (supra) the Hon ble Apex Court again had an occasion to define the word issued and observed as under: 14. Section 444 prescribes the manner in which notices, etc. are required to be served or issued. The High Court has rightly pointed out that four eventualities are contemplated in Section 444(1). However, the expression give doe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Representative, the Hon ble Apex Court had an occasion to determine the limitation and observed as under: If an authority is authorised to exercise a power or do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefore. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made; that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus paetentiae. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the ower has been exercised within the prescribed time. So far as the party who is affected by the order or decision for seeking his remedies against the same, he should be made aware of passing of such order. There ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 defense 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. (2) The Commissioner of Customs may, on receipt of the written statement from the Customs Broker, or where no such statement has been received within the time limit specified in the notice referred to in sub-regulation (1), direct the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, to inquire into the grounds which are not admitted by the Customs Broker. (3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall, in the course of inquiry, consider ..... X X X X Extracts X X X X X X X X Extracts X X X X
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