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TMI Blog2024 (5) TMIX X X X Extracts X X X X X X X X Extracts X X X X ..... ppear for the cross-examination, which he failed to do so. Hence, the applicants claim that they are not provided an opportunity to cross-examine the persons concerned fails. Section 11(n) of CBLR, 2013 reads as 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; From the above clause it is very clear that it is the responsibility of the Custom House Agent and his employees to ensure that the antecedents and other particulars of the Exporter are verified before signing any of the relevant documents. From the statements of the Managing Partner of the appellant and one of the employee, it is an admitted fact that the appellant fail to adhere to the provisions u/s 11 (n) of the CBLR 2013. Therefore, there is no doubt that the appellants have violated Section Regulation 11 (n) of the CBLR. In fact taking into overall allegations and based on the inquiry report observed that there is no finding to the effect that the Customs Broker, the appellant had conspired in the attempted smuggling operation and based on this obser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of the offence report and in the present case the statement was recorded from the Managing Partner on 15th October 2013 and the notice was issued on 02.03.2015 which is much later than the prescribed limit under the regulations, hence the notice is barred by limitation and unsustainable. It is also submitted that the inquiry report is also barred by limitation as it is beyond 90 days from the date of the show cause notice. 2.1 He further submits that the entire allegation is based on the statement of Shri Loganathan who admitted that the appellant had sublet the licence to him which is totally false and unsustainable. The request for cross examining him was rejected and this is against the regulations which categorically state that the appellant should be given an opportunity for cross examining those persons who are party to the alleged offence. 3. The learned Authorised Representative reiterated the findings of the Commissioner and relied upon the decision of this bench in the case of M/s . UDL Logistics Pvt. Ltd. Vs. the Commissioner of Customs Final Order No.20036/2024 dated 09.01.2024, where this Tribunal held that since there was misdeclaration of goods as industrial ductil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation, even if it is deviated for whatsoever reason beyond the control of the revenue or the Customs House Agent would result into consequences of declaring the entire action invalid if the provision is construed as mandatory. On the other hand, if the provision the construed as directory, the Customs House Agent would be deprived of his licence for considerable long time, if the time schedule is not adhered to the Revenue at its sweet choice would prolong the procedure and which is a likely situation, no attempts would be made to complete the inquiry within the stipulated period. This is what has weighed in the mind of the High Courts while dealing with the said regulation and holding the same to be mandatory. The catena of judgments on which reliance has been placed to declare the provision as mandatory have referred to the extraordinary delay caused at the instance of the revenue in conducting inquiry against the Customs House Agent, depriving them of their means of livelihood 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 statu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of consequences in case of non-compliance with the requirement would indicate that the provisions are directory irrespective of use of the word shall . The CESTAT has concluded that if the time limits are construed as mandatory and the matter is put to an end, the purpose of Regulation would be defeated and so would be the intention behind framing such a Regulation. On the other hand, if there is no consequence stated in the regulation for non-adherence is a time period for conducting the inquiry, the time line cannot be proved to be fatal to the outcome of the inquiry. Based on these observations the Tribunal had held the Regulation is directory in nature. However, in the present judgment which is impugned before us, the CESTAT has taken a view contrary to its earlier view in Unison Clearing Pvt. Lt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t recorded on 26.09.2013 stated that he was working as a clerk with the Appellant and he looks after the export and import documents filing and all other related work. He had filed the Shipping Bill No.7365519 dated 07.09.2013 and informed that Natural Slate Stones were and stuffed in the container and send to the harbour and he does not know how the container was found with Red Sander logs. He further stated that Shri. Loganathan who was working for Akash Shipping Services introduced him to M/s. M.M Industries and so far he had signed thrice on the export documents and he did not know anybody from M.M Industries and he did not check the KYC norms and since Shri. Loganathan did not have any customs license he used to get the signatures from him and all the relevant documents were filed by Shri. Loganathan. Shri. Benny Francis the Managing Partner of the appellant also in his voluntary statement stated that one of his employees Shri. C. Suresh introduced them to M/s. M. M. Industries to his company through Shri Loganathan of Akash Shipping Services and his company filed 3 shipping bills on behalf of M/s. M.M. Industries vide Shipping Bills No. 3954321 dated 13.02.2013, 5865362 dated ..... X X X X Extracts X X X X X X X X Extracts X X X X
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