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TMI Blog2020 (3) TMI 103X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions of Learned Counsel on the merit of their claim for restoration are required to be taken up for consideration only in the event that compliance with the timelines prescribed in the Regulation has been established in the context of the decision of the Hon'ble High Court of Bombay in Principal Commissioner of Customs (General) v. Unison Clearing P Ltd [2018 (361) ELT 32 (Bom.)]. 2. Having heard Learned Counsel and Learned Authorised Representative at length on merit as well as compliance, or otherwise, with time lines, we find ourselves obliged to adopt this two step process as the detriment in regulation 14 of Customs Brokers Licensing Regulation, 2013 has implication on the living conditions and employment and the responsibil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms. The importer would find it impossible to clear his goods through these agencies without wasting valuable energy and time. The CHA is supposed to safeguard the interests of both the importers and the Customs. A lot of trust is kept in CHA by the importers/exporters as well as by the Government Agencies. To ensure appropriate discharge of such trust, the relevant regulations are framed. Regulation 14 of the CHA Licensing Regulations lists out obligations of the CHA. Any contravention of such obligations even without intent would be sufficient to invite upon the CHA the punishment listed in the Regulations...." We approve the aforesaid observations of the CEGAT, West Zonal Bench, Mumbai and unhesitatingly hold that this misconduct has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lihood and it was observed that the purpose of prescribed time limit was to safeguard the interest of the Customs Broker and smooth import and export of goods. By relying on a celebrated principle, when a statute prescribes a thing to be done in a particular manner, it must be performed in such a manner, the use of the word "shall" in the Regulation has been construed as mandatory. With due respect to the finding so recorded in the judgment of the Madras Court in case of Masterstroke Freight Forwarders P. Ltd. v. C.C.(I), Chennai-I, reported in 2016 (332) ELT 300 (Madras) delivered by the Learned Single Judge, the parameters of construing a provision as mandatory or directory, when it deals with a discharge of a public duty and a resultan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ipline in the Customs arena and it would result in letting the miscreant set loose by taking benefit of deviation of the time schedule. The said CESTAT West Zonal Bench, Mumbai in Unison Clearing Pvt. Ltd v. Commissioner of Customs (General), Mumbai (supra) has in detail dealt with the Regulation 22 and has examined whether it has to be construed as mandatory or directory. Relying on catena of judgments delivered by the Hon'ble Apex Court, and specifically in Delhi Air Take Services Pvt. Ltd. and Another v. State of West Bengal and Another, CESTAT has concluded that while deciding whether the time period is directory or mandatory, it would be seen that the purpose of law prescribing it as mandatory and consequently the absence of provisions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to be rigidly applied, fairness would demand that when such time limit is crossed, the period subsequently consumed for completing the inquiry should be justified by giving reasons and the causes on account of which the timelimit was not adhered to. This would ensure that the inquiry proceedings which are initiated are completed expeditiously, are not prolonged and some checks and balances must be ensured. One step by which the unnecessary delays can be curbed is recording of reasons for the delay or non-adherence to this timelimit by the Officer conducting the inquiry and making him accountable for not adhering to the time schedule. These reasons can then be tested to derive a conclusion whether the deviation from the time line prescribed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncement of the proceedings for revocation of the licence does not command itself as indicative of proper undertaking of responsibility. 7. There is nothing on record to arrive that the 'G' card-holder, who was investigated for his key role in the conspiracy to smuggle 'red sanders' out of India, was concerned with the activities for which appellant herein was licenced. The allegedly nefarious activities of such a pass-holder, although obtained through the licenced customs broker, cannot be visited upon the broker in the absence of a link between the two in the context of established misdemeanor. Perhaps, the unwarranted delay in completion of the proceedings arose from the lack of any such proximate participation in the said incident. 8. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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