Custom, Excise & Service Tax Tribunal
M/S. Charania Associates vs Commissioner Of Customs(General), ... on 13 July, 2016
IN THE CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL WEST ZONAL BENCH AT MUMBAI COURT NO. II APPEAL NO. C/86609/15 [Arising out of Orders-in- Original No. 39/CAC/CC(G)/SRP/CBS(Admn) dated 2-7-2015 passed by the Commissioner of Customs(General), Mumbai] For approval and signature: Honble Mr Ramesh Nair, Member(Judicial) Honble Mr. Raju, Member (Technical) =======================================================
1. Whether Press Reporters may be allowed to see : No
the Order for publication as per Rule 27 of the
CESTAT (Procedure) Rules, 1982?
2. Whether it should be released under Rule 27 of the :
CESTAT (Procedure) Rules, 1982 for publication
in any authoritative report or not?
3. Whether Their Lordships wish to see the fair copy : seen
of the Order?
4. Whether Order is to be circulated to the Departmental: Yes
authorities?
=======================================================
M/s. Charania Associates
:
Appellant
VS
Commissioner of Customs(General), Mumbai
:
Respondent
Appearance
Shri. S.N. Kantawala, Advocate for the Appellants
Shri. D.K. Sinha, Asstt. Commissioner(A.R.) for the Respondent
CORAM:
Honble Mr. Ramesh Nair, Member (Judicial)
Honble Mr. Raju, Member (Technical)
Date of hearing: 13/7/2016
Date of decision /2016
ORDER NO.
Per : Ramesh Nair
The appeal is arising out of the OIO No. 39/CAC/CC(G)/SRP/CBS(Admn) dated 02.07.2015 passed by Commissioner of Customs (General) New Customs House, Mumbai, by which the Ld. Commissioner ordered the revocation of C.B. Licence of the Appellant, and also ordered of forfeiture of entire amount of security deposit.
2. The fact of the case is that a case was reported by the Directorate of Revenue Intelligence, Mumbai Zonal Unit on 05.07.2013, informing that the Appellant has violated the provisions of CBLR 2013 (erstwhile CHALR 2004), by indulging in gross violation with a Syndicate headed by Shri Vinesh Chedda, in the consignment of consumer goods imported in the names of bogus / dummy IECs, and also proposing action against the Customs Broker (erstwhile CHA), under Regulation 19 (1) of CBLR, 2013 (erstwhile regulation the CHALR 2004). The statements of following persons involved in the case of gross undervaluation were obtained from the DRI, Mumbai on 5.07.2013.
i) Statement dated 15.02.2012 of Shri Vinesh Naresh Chedda
ii) Statement dated 14.03.2012 of Shri Saleem Roshan Ali, Manager of M/s. Charania Associates
iii) Statement dated 19.03.2012 of Shri Zulfikzar M. Charania (Licence holder of M/s. Charania Associates).
From the above statements recorded under Section 108 of the Customs Act, 1962 recorded by DRI, Mumbai and provided to the Commissioner (Customs), who was of the view that the C.B. (CHA) is seen to violate the regulations 11(a), 11(d), 11(m) and 11(n) of CBLR, 2013 (erstwhile Regulation 13(a), 13(d), 13(n) and 13(o) of CHALR, 2004). Hence the Licence of CB (CHA) was placed under suspension vide Order No. 10/2013 dated 23.07.2013 and suspension was further continued vide Order No. 20/2013 dated 23.08.2013 under Regulation 19(2) of CBLR (formerly Regulation 20(3) of CHALR 2004), after granting personal hearing to the C.B (CHA) on 22.08.2013. Subsequently enquiry proceedings under Regulation 20 of the CBLR 2013 (erstwhile Regulation 22 of CHALR, 2004), were initiated against the C.B. vide Notice dated 04.10.2013. Accordingly, Article of charges were framed against the Customs Broker for violation of Regulation 11(a), 11(d), 11(m) and 11(n) of CBLR, 2013 (erstwhile Regulation 13 (a), 13 (d), 13(n) and 13(o) of CHA LR 2004), on the allegation that CB (CHA) had not attempted to obtain Authorisation from the Importers, that CB (CHA) has not advised the importer to comply with the provisions of Act and Rules and also failed to inform Customs about the use of dummy IECs, of which he was aware, that the CB (CHA) has displayed utterly irresponsible and behavior and rank inefficiency by allowing his employee to indulge in illegal acts with nefarious intent, thus, the CB (CHA) not efficiently discharged his duties and responsibilities towards Customs, that the CB (CHA) has flagrantly violated the KYC norms, thereby rendering the CB(CHA) Firm liable for violation of Regulation 11(n) of CBLR 2013.
3. On the above charges the Inquiry Officer submitted his report dated 13.04.2015 received in the office of the Commissioner on 17.04.2015, wherein he held that all the Article of charges have been passed against the CB (CHA).
4. The advocate of the CB (CHA) submitted a written submission on 04.06.2015, wherein the submission was made on delay in entire proceedings and also made submission on merit. After considering the oral and written submission of the Appellant, the Ld. Commissioner came to a conclusion that the CB (CHA) is guilty of violation of Regulations 11(a), 11(d), 11(m) and 11(n) of CBLR 2013 (erstwhile Regulation 13 (a), 13(d), 13(n) and 13(o) of CHALR, 2004), accordingly the CB Licence was revoked and the security deposit made by the Appellant was forfeited by the impugned order. Being aggrieved by the said impugned order, the Appellant is before us.
5. Shri Sujoy Kantawala Ld. Counsel appearing on behalf of the Appellant submits that the revocation of licence is illegal in as much as the entire proceeding right from the receipt of the offence report upto the passing of the impugned order, the statutory time line prescribed under the Regulation was not adhered to by the department. He submits that at every stage i.e. issuance of the Show Cause Notice, preparation of report of inquiry and passing of the Order-in-Original was not in accordance with the time line prescribed in the regulations. In this fact the impugned order is not sustainable on the ground of limitation itself without going into the merit of the case. In this support he placed reliance on the following judgments:-
(i) Impexnet Logistic Vs. Commissioner of Customs (General) 2016-TIOL-1069-HC-DEL-CUS
(ii) M/s. Shiva Khurana Vs. Commissioner of Customs, New Delhi (Import and General) 2016-TIOL-1220-CESTAT-DEL
(iii) M/s. Naresh Kumar Meena Vs. Commissioner of Customs, Jodhpur 2015-TIOL-1166-CESTAT-DEL
(iii) M/s. Lohia Travels and Cargo Vs. Commissioner of Customs (General), New Delhi 2015-TIOL-2467-CESTAT-DEL
(iv) Commissioner of Customs (General) Vs. Sainath Clearing Agency 2015 (326) E.L.T. 548 (Bom.)
(v) Ajay Clearing Enterprise Vs. Commissioner of Customs (General) 2016 (336) E.L.T.33 (Bom.
(vi) A Tajudeen Vs. Union of India 2014-TIOL-85-SC-FEMA He further, submits that the entire case was decided on statements of various persons. However, the appellants representative retracted their statement. Therefore only on the basis of statement and that too retracted one it cannot constitute the sole basis to arrive at a finding of guilt. In this support the relied upon the judgement of -
(i) A Tajudeen Vs Union of India[2014-TIOL-85-SC-FEMA] With his above submissions, he the prays for order of restoration CB licence of the appellant.
6. On the other hand Shri D.K. Sinha Ld. Assistant Commissioner (AR) appearing on behalf of the revenue reiterates the findings of the impugned order. He further submits that as regard the submission of the Ld. Counsel on limitation, the time limit prescribed in the regulation is directory and not mandatory. Therefore only for non following the time limit prescribed for inquiry under the CBLR 2013 the entire proceeding will not vitiate. The offence on the part of the appellant is very grave in the nature therefore entire proceeding cannot be dropped only on the limitation. He placed reliance on the following judgments :-
(i) Commr. Of Cus. & C. Ex., Hyderabad-II Vs. H.B. Cargo Services 2011 (268) E.L.T. 448 (A.P.)
(ii) Commissioner of Customs (General) Vs. Worldwide Cargo Movers 2010 (253) E.L.T. 190 (Bom.)
(iii) P.B. Nair C & F Pvt. Ltd. Vs. Commissioner of Customs (General), Mumbai 2015 (318) E.L.T. 437 (Tri.-Mumbai)
(iv) Mhatre & Sons Vs. Commissioner of Cus. (General), Mumbai 2013 (295) E.L.T. 617 (Tri.-Mumbai)
(v) Ota Kandla Pvt. Ltd. Vs. Union of India 2011 (269) E.L.T. 457 (Guj.)
(vi) Skyways Vs. Commissioner of Customs (Gen.), New Delhi 2004 (163) E.L.T. 474 (Tri.Del.)
(vii) Daroowala Brothers & Co. Vs. Commr. Of Cus. (General), Mumbai 2010 (249) E.L.T. 310 (Tri.Mumbai)
(viii) K.M. Ganatra & Co. Vs. Commissioner of Customs (G), Mumbai 2007 (219) E.L.T. 316 (Tri.-Mumbai)
(ix) Commissioner of Customs (G), Mumbai Vs. K.M. Ganatra & Co.
2010 (254) E.L.T. 454 (Bom.)
(x) Commissioner of Customs Vs. M/s. K.M. Ganatra & Co.
2016-TIOL-13-SC-CUS
(xi) Jasjeet Singh Marwaha Vs. Union of India 2009 (239) E.L.T. 407 (Del.)
(xii) Unison Clearing Pvt. Ltd. Vs. Commissioner of Cus. (Gen. 2015 (329) E.L.T. 269 (Tri.-Mumbai)
(xiii) Baraskar Brothers Vs. Commissioner of Customs [2016-TIOL-482-CESTAT-MUM)
(xiv) WP No. 143 of 2010 GA No. 253 of 2011 M/S.Bose Enterprise & Anr Versus Union of India & Ors
7. We have carefully considered the submissions made by both the sides and perused the records. We find that the Ld. Counsel emphatically argued the case on limitation i.e. right from initiation of the proceedings till the passing of order of revocation of CB Licence of the Appellant, the department has not complied with the condition of the time limit prescribed not only for stage wise time limitation but also for over all time limit of 9 months for revocation of CB License. Therefore, the impugned order is not sustainable only on time limit without going into the merit of the case. Therefore we take up the case for decision on limitation. In the present case the proceeding conducted from 15.02.2012 to 02.07.2015. Therefore, the provision of both regulation, i.e. customs house agent licence regulation, 2004 and Customs broker Licence regulation, 2013 are relevant. The provision prescribing time line in both the proceedings are reproduced below :-
CHALR, 2004 Under the CHALR, 2004 Regulation 20 empowers the Commissioner to suspend or revoke the licence and the procedure which needs to be followed in this regard is found in Regulation 22. For ready reference Regulation 22 is reproduced as under:
"22. Procedure for suspending or revoking licence under Regulation 20- (1) The Commissioner of Customs shall issue a notice in writing to the Customs House Agent within ninety days from the date of receipt of offence report, stating the grounds on which it is proposed to suspend or revoke the licence and requiring the said Customs House Agent 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 specify in the said statement whether the Customs House Agent desires to be heard in person by the said Deputy Commissioner of Customs or Assistant Commissioner of Customs.
Provided that the procedure prescribed in regulation 22 shall not apply in respect of the provisions contained in sub-regulation (2) to regulation 20.
(2) The Commissioner of Customs may, on receipt of the written statement from the Customs House Agent, 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 to inquire into the grounds which are not admitted by the Customs House Agent.
(3) The Deputy Commissioner of Customs or Assistant Commissioner of Customs shall, in the course of inquiry, consider such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs House Agent, for the purpose of ascertaining the correct position.
(4) The Customs House Agent shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing.
(5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs shall prepare a report of the inquiry recording his findings and submit his report within ninety days from the date of issue of a notice under sub-regulation (1).
(6) The Commissioner of Customs shall furnish to the Customs House Agent a copy of the report of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, and shall require the Customs House Agent to submit, within the specified period not being less than thirty days, any representation that he may wish to make against the findings of the Deputy Commissioner of Customs or Assistant Commissioner of Customs.
(7) The Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs House Agent, pass such orders as he deems fit within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-regulation (5).
(8) Any Customs House Agent aggrieved by any decision or order passed under regulation 20 or sub-regulation (7) of regulation 22, may prefer an appeal under Section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-section (1) of Section 129 of the Act".
CBLR, 2013 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 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 such documentary evidence and take such oral evidence as may be relevant or material to the inquiry in regard to the grounds forming the basis of the proceedings, and he may also put any question to any person tendering evidence for or against the Customs Broker, for the purpose of ascertaining the correct position.
(4) The Customs Broker shall be entitled to cross-examine the persons examined in support of the grounds forming the basis of the proceedings, and where the Deputy Commissioner of Customs or Assistant Commissioner of Customs declines to examine any person on the grounds that his evidence is not relevant or material, he shall record his reasons in writing for so doing.
(5) At the conclusion of the inquiry, the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall prepare a report of the inquiry and after recording his findings thereon submit the report within a period of ninety days from the date of issue of a notice under sub-regulation (1).
(6) The Commissioner of Customs shall furnish to the Customs Broker a copy of the report of the Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, and shall require the Customs Broker to submit, within the specified period not being less than thirty days, any representation that he may wish to make against the said report.
(7) The Commissioner of Customs shall, after considering the report of the inquiry and the representation thereon, if any, made by the Customs Broker, pass such orders as he deems fit either revoking the suspension of the license or revoking the licence of the Customs Broker or imposing penalty not exceeding the amount mentioned in regulation 22 within ninety days from the date of submission of the report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, under sub-regulation (5) :
Provided that no order for revoking the license shall be passed unless an opportunity is given to the Customs Broker to be heard in person by the Commissioner of Customs. The time schedules prescribed under these Regulations during the relevant period are as follows:
CHALR, 2004 CBLR, 2013 Purpose Specified Time Period 22(1) 20(1) Insurance of Show Cause Notice to the CHA/CB by the Commissioner.
Within 90 Days from the date of receipt of an offence report.
22(5) 20(5) Preparation of Report of Inquiry by the Deputy/ Assistant Commissioner.
Within 90 Days from the date of issuance of the show cause notice.
22(7) 20(7) Passing of order by the Commissioner.
Within 90 Days from the date of submission of the Inquiry Report.
TOTAL DURATION 270 DAYS OR 9 MONTHS As per the facts of the present case investigation of the customs case was initiated on 15.12.2012.The date of sequence of the present case are given as under-
15.02.2012 - Investigation of customs case was initiated.
14.08.2012 - Show Cause Notice under custom issued to various persons.
05.07.2013 - The office of the Commissioner received an offence report from DRI for proceeding against the appellant CB.
23.09.2013 The personal hearing was granted on 22.08.2013 and order for continuation of suspension was issued on 23.08.2013.
04.10.2013 Show Cause Notice/Charge sheet was issued under CBLR, 2013 Inquiry Officer was appointed by the commissioner wherein the following direction were issued to I.O.
The inquiry proceeding in a time bound matter and should be concluded within three months time from the date of appointment. The officers are directed to comply strictly with the time frame prescribed in the CBLR, 2013 (CHALR, 2004) and the circular No. 09.2010-Customs dated 08.04.2010. The officers are to submit monthly progress report to the undersigned without fail.
The acknowledgment of receipt of this order should be sent within a week.
Sd/-
(P.K. Agrawal) Commissioner of Customs (General) Mumbai 29.10.2013 Article of charges denied in writing and requested for cross-examination of persons.
28.02.2014 The preliminary hearing was fixed for first time on 14.03.2014 which was attended by CHA.
28.03.2014 The hearing were fixed but not conducted 11.04.2014 by the presenting officer, the said fact was 16.05.2014 recorded vide letter dt. 26.08.2014.
25.07.2014 Examination of Mr. Charania was carried out.
26.08.2014 - Letter addressed to C.C. (G) requesting 12.09.2014 him to call for the file and pass appropriate 27.10.2014 order for reinstating the normal operation 11.11.2014 on the basis of various judgment and Board 23.12.2014 Circular 08.04.2010.
05.01.2015 15.01.2015 - Examination in chief and cross Examination 16.01.2015 have been taken place.
18.02.2015 - The presenting officer filed his report.
24.02.2015 - The Appellant filed a detailed reply to the attending officer.
23.04.2015 Inquiry officer filed his report before the commissioner.
18.05.2015 Inquiry report served on the Appellant.
04.06.2015 A detailed reply to the report was filed by the Appellant before the Commissioner.
02.07.2015 The Commissioner, by the impugned order, revoked the CB Licence.
From the abovementioned sequence of dates, it can be seen that the offence report was received by the office of the Commissioner on 05.07.2013. Thereafter the Show Cause Notice/Chargesheet was issued to the appellant on 04.10.2013. Thus Show Cause Notice was issued beyond the stipulated time of 90 days which is prescribed time limit under regulation 22(1) / 20(1) of CBLR, 2013.
8. The inquiry officer filed his report on 23.04.2015 i.e almost after 200 days from the date of Notice date 04.10.2013.It is observed that the inquiry officer not only defied the time line prescribed in the regulation but also disobeyed the direction given by the Commissioner to the inquiry officer. The Ld. Commissioner passed the order for revocation of the CB licence on 02.07.2015. The overall period prescribed for the entire proceeding is 9 months or 270 days from the date of receipt of offence report. As the facts discussed above the total period taken for entire proceeding till the date of passing of order is 728 days. The order for revocation was passed beyond the prescribed time limit of 270 days. Therefore the order is not maintainable on limitation itself.
The High Court and Tribunals have considered the issue of time limitation in the proceeding of revocation of CHA/CB licence and held that the proceeding should be concluded within stipulated time period of 270 days. Some of the judgments and relevant operative portion thereof are given below:-
2016-TIOL-1069-HC-DEL-CUS IMPEXNET LOGISTIC Vs COMMISSIONER OF CUSTOMS (GENERAL)
7. It is plain that in the case there has been a violation of the time limits set out in Regulation 20 of the CBLR (corresponding to Regulation 22 of the CHALR). In the decision dated 12th May 2016 in Cus. AA 25/2015 [Indair Carrier Pvt. Ltd. v. Commissioner of Customs (General)] this Court held:
"6. The time limits in the CHALR 2004 for issuance of the SCN to the CHA licence holder and completion of the inquiry within 90 days of issuance of such SCN are sacrosanct. The aforesaid time limits were engrafted into Regulation 22 of the CHALR, 2004 by a Notification No. 30/2010- Cus.(N.T.) dated 8th April, 2010. Simultaneously, the CBEC issued Circular No. 9/2010 dated 8th April 2010 clarifying the procedures governing the suspension and revocation of CHA licence. In para 7.1 of the said Circular, CUSAA 25/2015 & W.P.(C) 3973/2015 Page 4 of 5 it was noted as under:
"7 .1 The present procedure prescribed for completion of regular suspension proceedings takes a long time since it involves inquiry proceedings, and there is no time limit prescribed for completion of such proceedings. Hence, it has been decided by the Board to prescribe an overall time limit of nine months from the date of receipt of offence report, by prescribing time limits at various stages of Issue of Show Cause Notice, submission of inquiry report by the Deputy Commissioner of Customs or Assistant Commissioner of Customs recording his findings on the issue of suspension of CHA license, 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 Shankar Clearing & Forwarding v. C. C. (Import & General) 2012 (283) E.L.T. 349 (Del.) = 2012-TIOL-657-HC-DEL-CUS , 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 = 2016-TIOL-845-HC-DEL-CUSin W.P.(C) No. 3071/2015 (M/s 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/Imports, Chennai (2015) 322 E.L.T. 170 (Mad.) = 2015-TIOL-1524-HC-MAD-CUS and Commissioner v. Eltece Associates 2016 (334) E.L.T. A 50 (Mad.)."
8. Recently by an order dated 24th April, 2016 in W.P.(C) No. 1734/2016 [HLPL Global Logistics Pvt. Ltd. v. The Commissioner of Customs (General)] this Court reiterated that the time limits in Regulation 20 of the CBLR/Regulation 22 of the CHALR are sacrosanct.
9. Admittedly, the SCN under the CHALR/CBLR in the present case was issued only on 9th December 2013, i.e., beyond the mandatory period of 90 days from the date of receipt of the offence report by the Respondent, i.e., 31st January, 2013. Consequently, all proceedings pursuant thereto are held to be invalid. Further, even the enquiry report was not submitted within a period of 90 days of the issuance of the SCN.
10. Consequently, the Court set asides the impugned order dated 1st June, 2015 passed by the Respondent revoking the licence of the Petitioner.
11. The writ petition is allowed in the above terms. No orders as to costs.
2016-TIOL-1220-CESTAT-DEL M/s SHIVA KHURANA Vs COMMISSIONER OF CUSTOMS, NEW DELHI (IMPORT AND GENERAL)
6. The time schedules prescribed under these Regulations during the relevant period are as follows:
CHALR, 2004 CBLR, 2013 Purpose Specified Time Period 22(1) 20(1) Insurance of Show Cause Notice to the CHA/CB by the Commissioner.
Within 90 Days from the date of receipt of an offence report.
22(5) 20(5) Preparation of Report of Inquiry by the Deputy/ Assistant Commissioner. Within 90 Days from the date of issuance of the show cause notice.
22(7) 20(7) Passing of order by the Commissioner.
Within 90 Days from the date of submission of the Inquiry Report.
TOTAL DURATION 270 DAYS OR 9 MONTHS
7. Since what constitutes offence report' has not been spelt out in the regulation, the same will have to be inferred from the circumstances of the case. From the records we find that the licensing authority namely the Commissioner of Customs (Import & General) has been apprised of the matter by the Commissioner of Customs (Export) through Order-in-original dated 12.03.2013. This may be practically considered as the offence report. The show cause notice proposing revocation has been issued on 12.07.2013, well beyond the ninety days limit prescribed for the same in regulation 22(1). The inquiry report which is mandated to be completed within ninety days from the date of the show cause notice has been filed only on 27.11.2014, very much beyond the ninety days time limit prescribed for the same. Finally the impugned order has been passed within ninety days from the date of inquiry report. However, the overall time taken were completion of regular proceeding is a period of 23 months, which is much beyond the allowed total duration of nine months. The Hon'ble High Court of Madras in A.M. Ahamed & Co. vs. Commissioner of Customs (Imports), Chennal - 2014 (309) ELT 433 (Mad.) = 2014-TIOL-1503-HC-MAD-CUS has held as under:
"20. The time limit prescribed in Regulation 22(1) has to be understood in the context of the strict time schedule prescribed in various portions of the Regulations. Regulation 20(2), for instance, entitles the Commissioner, to suspend the licence of an agent, in appropriate cases where immediate action is necessary. Regulation 22 (3) prescribes a time limit of 15 days. Regulation 22(1) prescribes a time limit within which action is to be initiated. It also prescribes the time limit under Regulation 22 (5). Therefore, considering the fact that the whole proceedings are to be commenced within a time limit and also concluded within a time frame, I am of the view that the show cause notice issued to the petitioner on 8.5.2010 with a copy marked to the first respondent should be taken as the date of receipt of the offence report. Consequently, the period of 90 days should commence only from that date. If so calculated, the impugned proceedings have obviously been initiated beyond the period of 90 days."
The ratio of the above decision that the time limits prescribed are to be mandatorily followed has also been followed by this Tribunal in several of its decisions such as-
(i) M/s Altharva Global Logistics vs. Commissioner of Customs, New Delhi - 2016-TIOL-157-CESTAT-DEL
(ii) M/s Lohia Travels and Cargo vs. Commissioner of Customs (General), New Delhi - 2015-TIOL-2467-CESTAT-DEL.
(iii) 2016-TIOL-524-CESTAT-DEL M/s Zen Cargo Movers Pvt. Ltd. vs. Commissioner of Customs, New Delhi - 2016-TIOL-524-CESTAT-DEL.
8. We find the Hon'ble High Court decision cited above is directly dealing with CBLR and sanctity time limit under the regulation. As such the order of the lower authority which was issued without adhering to the time schedule is liable to be set aside on these grounds. Accordingly, we set aside the impugned order dated 23.02.2015 of the original authority and allow the appeal.
2015-TIOL-2467-CESTAT-DEL M/s LOHIA TRAVELS AND CARGO Vs COMMISSIONER OF CUSTOMS (GENERAL), NEW DELHI
6. We find that the original authority is in complete error in stating that the Hon'ble Madras High Court in A. M. Ahamed & Co. (supra) dealt with only what is an 'offence report'. The Hon'ble High Court categorically held that the Commissioner is duty bound to initiate proceedings within ninety days from the date of receipt of offence report. The Hon'ble High Court held that it is not the case of Revenue that time limit prescribed in Regulation 22(1) is only directory and not mandatory. It was held that it is an accepted fact that the time limit prescribed therein has to be strictly adhered to. The Hon'ble High Court is clear in the finding that the period of limitation prescribed by a rule of procedure cannot be diluted. Hence, we find the original authority's attempt to distinguish the said decision, as not applicable to the present case, is not well founded. Further, his reliance on Madras High Court decision in Hyundai Motors India (supra) is totally misplaced. The Hon'ble High Court in that case was dealing with powers of Government of India to extent the imposition of anti-dumping duty after the expiry period. The Hon'ble High Court was dealing with entirely different set of legal provisions and facts and circumstances. We find the Hon'ble High Court decision in A. M. Ahamed & Co. (supra) is directly dealing with CBLR and the legal sanctity of time limit prescribed under the Regulations. As such, we find the order of the lower authority which was issued without adhering to the time schedule in every stage is liable to be set-aside on this ground.
7. Further, we find that the original authority agreed with the appellant's submission that the inquiry report in its entirety is a verbatim repetition of show cause notice issued under Customs Act, 1962. He further records that he is not inclined to give undue cognizance to the said inquiry report. However, he concludes that the said report is not in violation of Regulation 22 of CHALR, 2004 and finds no infirmity in this regard. We are not able to appreciate such contradiction in the original authority's finding. On the one hand, he finds that the inquiry report, which is a verbatim reproduction of show cause notice issued under Customs Act and as such he is not taking cognizance of the said report; on the other hand, he finds no infirmity in the report. It is not clear, if inquiry report was not given cognizance, then on what material records the original authority can proceed and decide the case resulting in the revocation of license of the appellant.
8 Considering the above discussion, we find that the impugned order of the original authority is issued in violation of the provisions of CHALR, 2004 /CBLR, 2013 and is not legally sustainable. The same is to be set-aside. Accordingly, we set-aside the impugned order dated 08.06.2015 of the original authority and allow the appeal. Since the order of revocation of license has been set-aside, the appeals filed by the appellant against suspension of the said license stand disposed of.
The Honble High Court held that time line prescribed for revocation of licence under CHALR, 2004/CBLR, 2013 must be strictly adhered to, else entire proceeding will be void on limitation itself.
9. As regard the debate that whether the time line prescribed under the regulation is directory or mandatory, we are of the view that in the circumstances that the specific time limit prescribed under the regulation and no power for condoning the delay was provided, the time line prescribe in mandatory. It is a strite law that in a particular act if specific time limit is prescribed for any action to be taken under such law that will prevail even over the provision of limitation Act. The CHALR/CBLR, 2013 have been enacted under the Custom Act 1962.
10. The Department officer cannot be allowed to flout the statutory provisions. It is settled by Honble Supreme Court in the case of Union of India V/s Arviva Industries India Ltd 2007(209) ELT 5 (S.C) that board circular issued by Central Board of Excise and Customs are binding on the departmental officer. In this regard we are of the view that when the board circular which is not even law, is binding on the departmental officer, then why a statutory regulation cannot be binding on the officer. Therefore there is no hesitation in saying that the regulation made under the Act is strictly binding on the departmental officer particularly where no provision is made for condonation of any delay.
The Honble Supreme Court/High Court time and again held that the time limit prescribed under the Act/Rule must be strictly adhered to. In this regard some of the judgment are referred below:-
1987 (30) E.L.T. 641 (S.C.) MILES INDIA LIMITED Versus ASSISTANT COLLECTOR OF CUSTOMS Refund claim - Limitation - Appellate Tribunal as well as Customs Authorities bound by statutory period of limitation - Appeal dismissed as withdrawn - Recourse to alternative remedy if available, advisable - Section 27(1) of Customs Act, 1962.
In view of the above Judgments, it is observed that under no circumstances time limit prescribed under any statutory provision can be relaxed. Therefore the commissioner was bound to insure that the entire preceding should have been completed within overall stipulated 270 days, which the adjudication authority failed to comply. Therefore the order of revocation passed after stipulated period of 270 days from the date of receipt of offence report cannot sustain. As regard Ld. ARs reliance on the decision of the Tribunal in case of Unison clearing, Baraskar brother and High Court judgment in Bose Enterprise (supra). It is observed that in the light of the subsequent judgment of this Tribunal as well as recent Judgment of Delhi High Court in Impex Net Logistic(supra) and as per the above referred Honble Supreme Court Judgment in case of Miles India and others cases (supra) the Honble Supreme Court held that the time limit prescribed under the Act/Rules cannot be relaxed. Therefore the decisions relied upon by Ld. AR stands distinguished. We are also of the view that not only the departmental officer even the Tribunal being creature under the same act cannot relax statutory time limit provided under the Customs Act and Rules/Regulation made thereunder. Since we decide this appeal on the ground of limitation itself, it is not necessary to address other issues such as merit of the case, quantum of punishment etc.
10. As per our above discussion we are of the view that the impugned order is not sustainable on the ground of limitation.
11. The impugned order is set aside and appeal is allowed.
(Order pronounced in court on _____________ ) Raju Member (Technical) Ramesh Nair Member (Judicial) sk 28 C/86609/15