Custom, Excise & Service Tax Tribunal
M/S. Seej India vs Commissioner Of Customs(G), Mumbai on 10 November, 2016
IN THE CUSTOMS EXCISE & SERVICE TAX APPELLATE TRIBUNAL
WEST ZONAL BENCH AT MUMBAI
Appeal No.
C/86835/15
(Arising out Order-in-Original No. 37/CAC/CC(G) /SRP/CBS (Admn.) dated 25.06.2015 passed by the Commissioner of Customs (Gen), Mumbai)
For approval and signature:
Honble Shri M.V. Ravindran, Member (Judicial)
Honble Shri C.J. Mathew, 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 No 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. Seej India
Appellant
Vs.
Commissioner of Customs(G), Mumbai
Respondent
Appearance:
Shri J.C. Patel, Advocate for the appellant Shri C. Singh, AC (AR) for the respondent CORAM:
Honble Shri M.V. Ravindran, Member (Judicial) Honble Shri C.J. Mathew, Member (Technical) Date of hearing : 10-11-2016 Date of decision : 10-11-2016 O R D E R No: ..
Per: M.V. Ravindran The appellant, M/s. Seej India, are in appeal against revocation of Customs Broker license. On an earlier occasion on 15.7.2016, when the matter came up, it was seen that the appellants were largely relying on the delay made by the Revenue and consequential implications under Customs Broker License Regulation (CBLR), 2013. On 15.7.2016 learned Counsel had argued that there has been inordinate delay in the processes in this case. She pointed that there are regulations prescribing time limits for conduct of various activities by Revenue for such actions and those time limits are prescribed under Customs Broker Licensing Regulations, 2013 (CBLR). She also highlighted the Circular No. 9/2010 dated 8.4.2010 issued by Revenue. In the said Circular, following para 7.1 & 7.2 read as: -
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.
7.2 In cases where immediate suspension action against a CHA is required to be taken by a Commissioner of Customs under regulation 20(2), there is no need for following the procedure prescribed under Regulation 22 since such an action is taken immediately and only in justified cases depending upon the seriousness or gravity of offence. However, it has been decided by the Board that a post-decisional hearing should be given in all such cases so that errors apparent, if any, can be corrected and an opportunity for personal hearing is given to the aggrieved party. Further, Board has also prescribed certain time limits in cases warranting immediate suspension under Regulation 20(2). Accordingly, the investigating authority shall furnish its report to the Commissioner of Customs who had issued the CHA license (Licensing authority), within thirty days of the detection of an offence. The Licensing authority shall take necessary immediate suspension action within fifteen days of the receipt of the report of the investigating authority. A post-decisional hearing shall be granted to the party within fifteen days from the date of his suspension. The Commissioner of Customs concerned shall issue an Adjudication Order, where it is possible to do so, within fifteen days from the date of personal hearing so granted by him. She also highlighted the amendment made in the Custom House Agent Licensing Regulations, 2004 (CHALR) vide Notification No. 30/2010-Cus (NT) dated 8.4.2010 prescribing various time limits.
1.1 It was seen that a number of cases have come before Tribunal where time limits have not been adhered to. It was seen that in the case of Lohia Travels and Cargo - 2016 (331) ELT 614, the Tribunal had identified various regulations prescribing time limits. Para 3 of the order in case reads as under: -
3. In the present appeals, the appellants main contention is that the procedure stipulated in the CHALR, 2004 and CBLR, 2013 have not been followed by the Commissioner in the proceedings against them. None of the time limits prescribed therein have been adhered to. 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) Issuance 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 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.
In order to ascertain if such inordinate delays as in the instant case are exceptional or such delays are regular, Revenue was asked to submit data to ascertain if they are following time limits and if this case was an exception to the rule. Data was sought of such cases from the period when such time limits were introduced under the CBLR, 2013. Vide miscellaneous application No. C/MA(Ors)/93379/16, Revenue has submitted the said data consisting of 15 records. Revenue has also stated that for compiling the data they require time of 8 to 12 months.
2. Learned Counsel for the appellant argues that the time limit prescribed under the CBLR, 2013 are mandatory in nature as has been held by the following decisions of Hon'ble High Court: -
(i) In the case of Overseas Air Cargo Services 2016 (340) ELT 119 (Del)
(ii) Hon'ble High Court of Madras in the case of Saro International Freight System CDJ-2015 MHC-7964.
(iii) Hon'ble High Court of Delhi in the case of INDAIR Carrier Pvt. Ltd. 2016 (337) ELT 41 (Del) Learned Counsel argued that in view of the decision of Hon'ble High Court of Delhi and Madras, the time limits prescribed under the CBLR, 2013 have to be considered mandatory and therefore the proceedings against them need to be set aside as the said time limits have not been followed.
3.1 Ld AR relied on the decision of the Tribunal in the case of Unison Clearing 2015-TIOL-1253-CESTAT-MUM to assert that the time limits prescribed under CBLR, 2013 are not mandatory but directory in nature. He argued that in view of the decision of coordinate bench of this Tribunal, the same needs to be followed. Ld AR further relied on decision of Hon'ble Apex Court in the case of Chairman of LIC vs. A. Masilamani in Civil Appeal No. 8263 of 2012 vide Order dated 23.11.2012. In the said decision, in a disciplinary matter it was held as under: -
The Court/Tribunal should not generally set aside the departmental enquiry, and quash the charges on the ground of delay in initiation of disciplinary proceedings, as such a power is de hors the limitation of judicial review. In the event that, the Court/Tribunal exercises such power, it exceeds its power of judicial review at the very threshold. Therefore, a charge-sheet or show cause notice, issued in the course of disciplinary proceedings, cannot ordinarily be quashed by court. The same principle is applicable, in relation to there being a delay in conclusion of disciplinary proceedings. The facts and circumstances of the case in question, have to be examined, taking into consideration the gravity magnitude of charges involved therein. The essence of the matter is that the court must take into consideration, all relevant facts and to balance and weigh the same, so as to determine, if it is in fact in the interest of clean and honest administration, that the judicial proceedings are allowed to be terminated, only on the ground of delay in their conclusion. 3.2 Ld AR further relied on the decision of Hon'ble High Court of Kolkata in the case of Bose Enterprises &Another vs. Union of India in Writ petition No. 143 of 2010vide Order dated 15.03.2012. Ld AR also relied on the decision of Hon'ble High Court of Delhi in the case of Burleigh International 2016 (333) ELT 9 (Del). Ld AR also relied on the decision of Hon'ble Apex Court in the case of Union of India & Others Vs. R.S. Saini 1991 Supp (2) Supreme Court Cases 151.
4. We have gone through the rival submissions. We find that admittedly the time limits prescribed under the CBLR, 2013 have not been followed. The CBLR, 2013 prescribed the following time limits: -
CHALR, 2004 CBLR, 2013 Purpose Specified Time Period 22(1) 20(1) Issuance 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 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.
In the instant case, the following is the time limit of event in the case: -
Sr. No. Event Date of occurrence Prescribed date Regulation 22 Delay
1. Intimation to Commissioner of Customs (Gen) 24.04.2009
2. Suspension of License 11.05.2009
3. Confirmation of suspension 15.12.2009
4. Notice under CHALR 15.04.2010 24.07.2009 The Commissioner of Customs (G) is required to issue the notice within 90 days of receipt of offence report Approx. 265 days
5. Inquiry Officers report 26.08.2014 15.07.2010 Inquiry Officers report is required to be submitted within 90 days from issuance of Notice. 1504 days Therefore total delay = 1770 days From the above, it is obvious that none of the time limit prescribed under the CBLR, 2013 has been followed. In fact there has been as inordinate delay of exceptional nature. The matter has been delayed by almost three years beyond time limit and almost 4 times the prescribed time limit. This is a case of exceptional delay.
4.1 Ld AR has relied on the decision of Hon'ble Apex Court in the case of Chairman, LIC Vs. A. Masilamani (supra). In the said decision, Hon'ble Apex Court has interpreted the dismissal of a disciplinary proceeding under LIC (Staff) Regulation, 1960. In the said case, Hon'ble High Court had interpreted regulation 46(2) of the said Regulation and set aside the proceedings. Regulation 46(2), as stated in the said order, reads as follows: -
In case of an appeal against the order imposing any of the penalties specified in Regulation 39, the appellate authority shall consider
(a) Whether the procedure prescribed in these Regulations has been complied with, and if not, whether such non-compliance has resulted in failure of justice;
(b) Whether the findings are justified; and
(c) Whether the penalty imposed is excessive, adequate or inadequate, and pass orders .
xxxx xxxxxxxxxxxx It is seen that Hon'ble High Court had in that case considered delay as one of the contributing factor. It is seen that there is no time limit prescribed under regulation 46(2) (as reproduced in the said decision). In the instant case CBLR, 2013 specifically prescribed time limits under various regulations and therefore the case in hand is different from the facts in the case before the Hon'ble Apex Court in the case of Chairman, LIC (supra). Moreover the said decision was given in disciplinary proceedings of a corporation. In the instant case, the matter involves interpretation of CBLR, 2013 which are regulation passed in exercise of power under Customs Act, 1962.
4.2 Ld AR has further relied on decision of Hon'ble High Court of Kolkata in the case of Bose Enterprises (supra). In the said case, Hon'ble High Court of Kolkata was interpreting the time limits prescribed by an instruction issued by CBE&C. Hon'ble High Court observed as under: -
The instructions issued by the Central Board of Excise and Customs are binding on the Department. The time stipulations in the Circular apparently directory and not mandatory, as will be evident from the language and tenor thereof. Furthermore, the Circular does not provide for the consequences of failure to adhere to the time schedule. At the material time, there was no time limit prescribed under CBLR, 2013 and in these circumstances the guidelines issued by CBE&C, by way of an instruction, to expedite the cases can only be considered directory. The instant case involves period when time limit have been prescribed by legislation under CBLR, 2013. In view of the above, the decision of Hon'ble High Court of Kolkata is not applicable in the instant case.
4.3 Ld AR has also relied on the decision of Hon'ble High Court of Delhi in the case of Burleigh International (supra). In the said decision, the Hon'ble High Court observed as follows: -
3.?This Court has considered the submissions. In the absence of any indication, within the Regulation, as to the consequence of not passing an order within the time stipulated, the Court is unpersuaded with the petitioners arguments that the discretion to pass the order within fifteen days of hearing is, in fact, a mandatory requirement. At the same time, this Court is not oblivious of the fact that more than five months have elapsed since the hearing was given on 31-12-2013. In these circumstances, to balance the equities, it would be appropriate that the Commissioner grants a fresh hearing to the petitioner or his representative as the case may be, within a week from today and thereafter pass orders under Regulation 19 either revoking or confirming the suspension.
It is seen that subsequent to this decision of Hon'ble High Court dated 13.5.2014, the Hon'ble High Court of Delhi in other cases has taken a different view. The same have been discussed in para 4.5 below.
4.4 Ld AR has also relied on the decision of Hon'ble Apex Court in the case of R.S. Saini (supra). In the said case, the Hon'ble Apex Court held that time limit prescribed by a memorandum of Government of India cannot be held to be mandatory. The said case is distinguishable for the reason that in the instant case, the time limit is not prescribed by Administrative order of the Ministry but by a statutory regulation issued under the authority of Customs Act, 1962.The instant case involves period when time limit have been prescribed by legislation under CBLR, 2013.
4.5 Learned Counsel for the appellant has cited a recent decision of Hon'ble High Court of Delhi in the case of Overseas Air Cargo (supra). In the said case, Hon'ble High Court of Delhi has followed the earlier decision of Hon'ble High Court of Delhi in the case of IndAir Carrier (supra) and held that the time limit prescribed under the CBLR, 2013 are mandatory in nature. In para 6 & 7 of the said decision, following has been observed: -
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, 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/DCon 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 (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.) and Commissioner v. Eltece Associates - 2016 (334) E.L.T. A50 (Mad.).
4.6 Hon'ble High Court of Madras in the case of Saro International Freight System (supra) has observed as follows: -
28. It is also to be noted that every act of breach by the Broker would entitle the authorities to initiate proceedings from the date of knowledge of the offence. It is only if the time limit is strictly followed, swift action can be initiated against the Customs Brokers and the authorities can also be made accountable. The Regulations only contemplate initiation of proceeding by issuance of notice within 90 days. While, making out a prima facie case, the respondents ought to have, without any shadow of doubt, treated the word "shall" in Regulation 11 as "mandatory" and not "directory". Therefore, when a time limit is prescribed in Regulations, which empowers action in Regulation 18 and procedure in Regulation 20 (1), the use of the term "shall" cannot be termed as "directory". It is pertinent to mention here that the CBLR, 2013 have replaced the CHA Regulations. The CHA regulations did not have any time limit to complete the proceedings. Therefore, by a Circular 09/2010 dated 08.04.2010, the necessity to include a time limit for initiating action was addressed by the Board after field inspection and by a notification dated 08.04.2010, amendments prescribing time period for initiating action and completing proceedings was made. The same was given effect by notification dated 20.01.2014.Whereas, under the CBLR, 2013 having found the necessity to prescribe a period, the Central Board, the statutory authority had included the same in the Regulations itself, when they were brought into force. Therefore, when a time limit is prescribed in Regulations, which empowers action under Regulation 18 by following the procedure in Regulation 20 (1), the use of the term "shall" cannot be termed as "directory". Under such circumstances, the rule can only be termed as " Mandatory".
5. We find that in this case Revenue has taken 1221 days to complete the actions for which a period of 270 days is prescribed in CBLR, 2013. There has been a delay of almost three years and more than four times the prescribed time has been taken. Revenue has sought to explain this due to the delay on the part of appellant as observed in para 3 above. It is seen that the regulations clearly use the word Shall while prescribing the time limits. This aspect has also been examined by Hon'ble High Court of Madras in the case of Saro International Freight System (supra). Hon High Court has observed as follows: -
27.?The purpose, for which such time limit has been prescribed, is to curb the smuggling of goods and in the result to cancel the licences of the brokers if they are involved and to impose penalty. The interpretation of a statute must always be to give a logical meaning to the object of the legislation and the aim must be to implement the provisions rather than to defeat it. As laid down by the Apex Court in the judgments relied upon by the learned counsel for the petitioners, when a statute prescribes a thing to be done in a particular manner, it must be performed in such a manner. Also, the use of the language shall in the regulation cannot be termed as directory as one of the consequences of the action is the revocation of the licence and it would also pave way for inaction by the officials breeding corruption. 5.1 In the interim order in the instant case following was observed while seeking data on the following of time limits: -
4. We find that we are regularly getting cases whether the said time limits have not been followed. The arguments of the appellants in such cases usually start on the ground of limitation. There are various decisions which hold that the time limits prescribed under the regulations are not directory but mandatory. There are some decisions otherwise too. In similar circumstances, earlier in the case of Skylark Travel Pvt. Ltd., wherein delay of 4 years had occurred (Order No. M/86739/16/CB dated 22.03.2016), the Bench had sought data to ascertain if delays are regular or exceptional. The said data was not provided for a period of almost four months. The matter was heard on 23.11.2015, the Bench waited for four months for the data, however order pronounced on 22.03.2016. The order had to be passed without the benefit of the said data. In the said order, the following observation was made: -
8. During the arguments, the issue of required delays in following the various time limits set out in the CHALR was also taken up. For appreciation of facts and circumstances, the learned AR agreed to provide data of the case pending/under investigation in the Customs House and if there are any delays. However, the said data has not been submitted till date. There is an obvious resistance to providing the data. This creates a suspicion. It is obvious that some Customs Brokers suffer on account of such delays and some get benefit on account of such delays. Some custom broker, who have not committed any serious fraud and who ought not to be punished, get out of work for long periods during which the proceeding are delayed. On the other hand, the nefarious custom brokers, who ought to be punished, get the benefit of the lapses committed on account of delays. In either case, it is bad for the system. It is in this context, the CBEC has issued the circulars dated 8.4.2010. It is not unlikely that many of the delays are deliberate and intended to help the nefarious custom broker or harass the good ones. In this context, it is felt that this data is relevant. In exercise of powers under CESTAT Procedure Rules, 1982, we direct the Revenue to present the data regarding observation of various time limits prescribed under regulations. This data may be given in respect of cases taken up or pending in the Mumbai Customs since the amendment made by Notification No. 30/2010-Cus dated 8.4.2010 till 30.6.2016. The respondents are directed to produce the said data on 23.8.2016 at the time of next hearing. By way of Miscellaneous Application Revenue has submitted only partial data consisting of 15 occasions. It is seen that the following is the summary of the data: -
Sr. No. CHA Name & No. Date of receipt of offence report Date of suspension of license Date of issue of Articles of Charges Date of appointment of IO Date of appointment of PO Date of submission of Inquiry report 1 BabajiShivram Clearing & Carriers, 11/262 25.3.2011 28.3.2011 28.9.2012 13.2.2013 13.2.2013 Inquiry is still pending
2. National Shipping Agency, 11/289 7.10.2011 25.10.2011 20.2.2014 20.2.2014 11.7.2014 27.2.2015
3. Franc Cargo Clearing Services, 11/964 21.7.2010 3.8.2010 4.2.2015 4.2.2015 4.2.2015 Inquiry is still pending
4. Vilas Transport Company, 11/470 9.3.2011 24.3.2011
5. Fairdeal Shipping Agency Pvt. Ltd., 11/091 9.9.2011 19.9.2011 20.11.2014 20.11.2014 22.3.2016
6. Kamal Clearing & Forwarding Pvt. Ltd., 11/691 18.8.2011 9.9.2011 15.12.2011 15.12.2011 15.12.2011 15.5.2013
7. Prashant Freight Forwarders, 11/477 30.6.2011 13.7.2011 9.11.2011 9.11.2011 9.11.2011 Inquiry is still pending
8. Hind Ship Airways, 11/672 27.12.2011 31.1.2012 6.7.2012 6.7.2012 6.7.2012 25.9.2012
9. MaaKrupa, 11/354 7.7.2011 20.7.2011 14.10.2011 14.10.2011 14.10.2011 4.6.2015 10 Dhakane& Co., 11/944 29.9.2011 16.11.2011 16.11.2011 8.2.2013 11 Jeena& Co., 11/025 25.11.2011 23.12.2011 21.1.2014 21.1.2014 21.1.2014 25.11.2014 12 OK Cargo Craft, 11/887 21.3.2011 31.3.2011 8.11.2011 8.11.2011 8.11.2011 Inquiry is still pending 13 SSS Sai Shipping Services Pvt. Ltd., 11/999 9.6.2011 22.6.2011 20.9.2011 20.9.2011 20.9.2011 26.12.2012 14 K.M. Commercial Services Pvt. Ltd., 11/907 30.8.2012 13.9.2012 2.11.2012 2.11.2012 2.11.2012 18.10.2013
15. RR Joshi Shipping & Forwarding Pvt. Ltd. , 11/486 8.11.2011 2.12.2011 25.1.2012 25.1.2012 25.1.2012 11.12.2012 It is seen that inquiries initiated in 2010/2011 are still pending in 2016. There is absolutely no respect for the CBEC circulars or the CBLR 2013. This data appears to be just the tip of the iceberg as the revenue is seeking further time of 8 to 12 months just to compile the data of other such files regarding delay in processing. This indicates a very serious state of affairs. The interim order seeking data was issued on 15.7.2016 and the Miscellaneous Application has been filed on 23.9.2016. In a period of 67 days, they have provided data of 15 cases. There appears to be reluctance in providing the data for some reasons. We are sure in a period of 67 days they could have easily compiled data a lot more files than 15.
5.2 From the data it is seen that not even in one case, the time limit being followed. In fact the delays are significant in many cases and in many cases the inquiry has not been completed even more than 5 years have been elapsed. The Honble Supreme Court in the case of Olga Tellis & Orsvs Bombay Municipal Corporation, 1986 AIR 180, has observed as follows: -
The argument which bears on the provisions of Article 21 is elaborated by saying that the eviction of pavement and slum dweller will lead, in a vicious circle, to the deprivation of their employment, their livelihood and, therefore, to the right to life. Our attention is drawn in this behalf to an extract from the judgment of Douglas J in Baksey v. Board of Regents, 347 M.D. 442 (1954) in which the learned Judge said:
"The right to work I have assumed was the most precious liberty that man possesses. Man has indeed, as much right to work as he has to live, to be free and to own property. To work means to eat and it also means to live."
The right to live and the right to work are integrated and interdependent and, therefore, if a person is deprived of his job as a result of his eviction from a slum or a pavement, his very right to life is put in jeopardy. It is urged that the economic compulsions under which these persons are forced to live in slums or on pavements impart to their occupation the character of a fundamental right. In the instant case the appellant has been out of work for long period of time. In most such cases the licences are suspended as soon as the inquiry starts and remain suspended till the enquiry is completed. The Custom Brokers are deprived of the fundamental right to work for long periods of time. The fundamental right to work is being denied to the appellant due to failure of the Revenue to follow the time limits prescribed in the law. In the 15 cases for which the data has been provided by the revenue, it is seen there are inordinate delays and the Brokers are rendered without work for long periods of time extending upto 5 years and still continuing as the enquiry has not been completed. In the process on the one hand the Custom Broker who are unscrupulous get the advantage of these delays in their defence, the good ones who are not guilty suffer for long periods of time. In both the cases the justice is not delivered.
5.3 It was obvious that there is lack of supervision and effort to adhere to the time limit prescribed by law. This will assume serious implications especially in view of the fact that Courts have held time limit to be mandatory in nature. This data of 15 cases is only tip of the iceberg. By the miscellaneous application filed, the Revenue seeks the time of 8 to 12 months just to compile the data of such delays. Suffice to say in such a serious issue needs immediate attention of CBE&C and Chief Commissioner of Customs. As a result of such delay, a number of serious offenders will get the benefit and be left of the hook and go scot free, which is not the intent of law. Similarly, due to the delays, people who are not guilty will continue to suffer the suspension and revocation on account of delays by Revenue due to lack of responsibility.
6 Relying on the decision of Hon'ble High Court in the cases of Overseas Air Cargo Services (supra); Saro International Freight System (supra) and INDAIR Carrier Pvt. Ltd (supra), the appeal is allowed on limitation without going into merits of the case. The miscellaneous application is also disposed of as the Revenue has not given the data sought and waiting any further would cause further delay. Copy of the order may be sent to CBE&C and Chief Commissioner of Customs for information and necessary action. The license which is revoked by the impugned order is restored forthwith and Commissioner of Customs (General), Mumbai is directed to do the needful immediately. (Operative part pronounced in Court) (C.J. Mathew) Member (Technical) (M.V. Ravindran) Member (Judicial) //SR
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C/86835/15