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TMI Blog2024 (7) TMI 940X X X X Extracts X X X X X X X X Extracts X X X X ..... contention of the Appellant is that neither the Inquiry officer nor the Ld. Commissioner gave an opportunity to Appellant to bring the correct facts on records by way of cross-examination of the persons whose statements were relied upon by the Department. Further the Inquiry officer delayed the issuance of his report beyond the prescribed period provided under CBLR 2018, hence the impugned order is not sustainable in law. The right of cross-examination has been recognized under Regulation 17(4) of the CBLR Regulations, 2018, which requires Inquiry Officer to give reasons if he intends to deny such right to the Customs Broker. Recognizing the right of cross-examination, in the case of FLEVEL INTERNATIONAL VERSUS COMMISSIONER OF CENTRAL EXCISE [ 2015 (9) TMI 1151 - DELHI HIGH COURT] held that ' the circumstances under which the right of cross-examination can be taken away would have to be exceptional . This would include circumstances where the person who had given the statement was dead or cannot be found or is incapable of giving evidence or is kept out of the way by adverse party or whose presence cannot be obtained without an amount of delay or expense which, under the circum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hoto gives by him in relation to job were mis-used for opening IEC in the name M/s. Crescent Traders, Dombivali (W); instead Shri Nasir Khan was the actual importer/controller of M/s Crescent Traders and he used fake documents/ details in relation to fraudulent import of goods to evade his liability from the Govt. enforcement agencies. Further it appeared that the CB M/s All Marine Cargo Services filed Bill of Entry in respect of the goods imported by M/s Crescent Traders without verifying the KYC documents and genuineness of the importer. The said customs broker has mis-declared/undervalued the goods in question without applying their own mind and without inquiring further into the matter, in details. Various statements of the employee of appellant were recorded. Accordingly a show cause notice dtd. 25.09.2018 was issued to the appellant under Regulation 14 and 18 of CBLR 2018 alleging various contravention under Regulation 10(a),10(d),10(e),10(f),10(n)and 13(12)of the CBLR `2018 which culminated into impugned order wherein the Commissioner revoked the license and ordered for forfeiture of entire security deposit and imposed penalty of Rs.50,000/-. The appellant is in appeal again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent (AR) appearing on behalf of department reiterated the findings given by Learned Commissioner of Customs. 4. Heard both sides and perused the records. 4.1 We find that in the present matter the undisputed facts are that the appellant filed Bill of Entry for import of goods for the importer M/s. Cresent Traders. The investigation revealed goods covered under Bill of Entry were undervalued, mis-declared, undeclared/concealed and prohibited in nature. Further as per revenue the importer was a dummy firm. Alleging violation on the part of the appellant Customs Broker, the Commissioner Customs initiated proceeding under CBLR, 2018 (erstwhile CBLR, 2013) by issuing a notice to the appellant; Inquiry Officer was appointed and on the basis of the said Inquiry report, in the impugned order the adjudicating authority directed revocation of license, forfeiture of security deposit and imposition of penalty of Rs. 50,000/- on the appellant. 4.2 We find that the main contention of the Appellant is that neither the Inquiry officer nor the Ld. Commissioner gave an opportunity to Appellant to bring the correct facts on records by way of cross-examination of the persons whose statements were rel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner of Customs or Commissioner of Customs, as the case may be. 4.4 In terms of Regulation 17(1), a show cause notice is to be issued within 90 days from the date of receipt of the Offence report, while Regulation 17(5) prescribes a time period of 90 days from the date of issue of Show Cause Notice for submission of an Inquiry Report. Regulation 17(7) prescribes that within 90 days from the date of the submission of the Inquiry Report and after consideration thereof, the Principal Commissioner/Commissioner shall pass orders either revoking the suspension of license or revocation of license of the Customs Broker. 4.5 Once an Offence Report is issued, the time period as provided in the CBLR commences. The scheme of these Regulations is such that even a delay in one or more sub-regulation(s) of Regulation 17 of CBLR, 2018 will have a cascading effect on the subsequent timelines, causing a consequential delay at each stage. On a perusal of the record, it is evident that the offence report against the Appellant was issued on 10-09-2018. The Inquiry Report submission under sub-regulation (5) of Regulation 17 was to be done within 90 days of the date of issue of SCN i.e. within 90 day ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, and for passing of an order by the Commissioner of Customs. Suitable changes have been made in the present time limit of forty five days for reply by CHA to the notice of suspension, sixty days time for representation against the report of AC/DC on the grounds not accepted by CHA, by reducing the time to thirty days in both the cases under the Regulations. 7. This Court has consistently emphasised the mandatory nature of the aforementioned time limits in several of its decisions. These include the decision in Schankar Clearing Forwarding v. C.C. (Import General), 2012 (283) E.L.T. 349 (Del.), the order dated 25th April, 2016 passed by this Court in Customs Appeal No. 14/2016 (Commissioner of Customs (General) v. S.K. Logistics) and the order dated 29th April, 2016 in W.P. (C) No. 3071/2015 (Sunil Dutt v. Commissioner of Customs (General) New Customs House). The same position has been reiterated by the Madras High Court in Sanco Trans Ltd. v. Commissioner of Customs, Sea Port/lmports, Chennai, 2015 (322) E.L.T. 170 (Mad.) and Commissioner v. Eltece Associates, 2016 (334) E.L.T. A50 (Mad.). 8. Recently by an order dated 24th April, 2016 in W.P. (C) No. 1734/2016 [HLPL Global Logis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this Court referred to Section 9D of the CE Act and noted that even while upholding its constitutional validity in J K Cigarettes Ltd. v. Collector of Central Excise - 2011 (22) S.T.R. 225 (Del.), a Division Bench of this Court had observed that the circumstances under which the right of cross-examination can be taken away would have to be exceptional . This would include circumstances where the person who had given the statement was dead or cannot be found or is incapable of giving evidence or is kept out of the way by adverse party or whose presence cannot be obtained without an amount of delay or expense which, under the circumstances, the Court considers unreasonable. It was held by the Court in Basudev Garg (supra) that it is clear that unless such circumstances exist the noticee would have a right to cross-examine the person whose statements are being relied upon even in quasi judicial proceedings. 4.9 In yet another case, in the matter of Him Logistics Pvt. Ltd. v. The Principal Commissioner of Customs, 2016 SCC On Line Del 1236 = 2016 (336) E.L.T. 15 (Del.), observed as under :- 16. In the present case, it is an admitted fact that the Respondent Department is placing consi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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