Delhi High Court - Orders
Commissioner Of Customs (Airport & ... vs M/S R.P. Cargo Handling Services on 23 September, 2022
Author: Rajiv Shakdher
Bench: Rajiv Shakdher
$~63
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CUSAA 223/2019
COMMISSIONER OF CUSTOMS (AIRPORT & GENERAL)
..... Appellant
Through: Mr Harpreet Singh, Sr. Standing
Counsel with Ms Suhani Mathur
and Mr Jatin K. Gaur, Advocates.
versus
M/S R.P. CARGO HANDLING SERVICES ..... Respondent
Through: Mr Priyadarshi Manish with
Ms Anjali J. Manish, Advocates.
CORAM:
HON'BLE MR JUSTICE RAJIV SHAKDHER
HON'BLE MS JUSTICE TARA VITASTA GANJU
ORDER
% 23.09.2022 [Physical Hearing/Hybrid Hearing (as per request)]
1. Today, Mr Priyadarshi Manish, who appears on behalf of the respondent, says that he has revisited the situation. 1.1 According to Mr Manish, no reply needs to be filed, and that having regard to the issue involved, the matter can be argued based on the record presently available with the Court.
2. We have briefly heard the counsel for the parties. The central point which arises for adjudication in the present appeal concerns the meaning that has to be given to the expression "issue" appearing in Regulation 20(1) of Customs Brokers Licensing Regulations, 2013 [in short, "2013 Regulations"].
2.1 The relevant part of the 2013 Regulations is extracted hereafter:
"20. Procedure for revoking licence or imposing penalty. -Signature Not Verified Digitally Signed CUSAA 223/2019 Page 1 of 4 By:VIPIN KUMAR RAI Signing Date:23.10.2022 22:29:23
(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." [Emphasis is ours]
3. Furthermore, the record shows that the following dates and events are not in dispute:
(i) The office report was received by the Commissioner of Customs on 18.05.2018.
(ii) The show-cause notice ["SCN"] issued to the respondent is dated 10.08.2018.
(iii) The SCN was posted on 14.08.2018.
(iv) According to the appellant/revenue, attempts to serve the respondent were made on 16.08.2018, 17.08.2018 and 18.08.2018.
(v) The SCN was physically handed over to the respondent on 28.08.2018.
(vi) The ninety (90) days for issuance of SCN, as prescribed under Regulation 20(1) of 2013 Regulations, expired on 17.08.2018.
4. It is the contention of Mr Harpreet Singh, who appears on behalf of the appellant/revenue, that since the SCN was dispatched on 14.08.2018, the appellant/revenue has met the time prescription given under Regulation Signature Not Verified Digitally Signed CUSAA 223/2019 Page 2 of 4 By:VIPIN KUMAR RAI Signing Date:23.10.2022 22:29:23 20(1) of 2013 Regulations.
5. On the other hand, Mr Manish submits that the expression "issue" which is incorporated in Regulation 20(1) of 2013 Regulations is to be read as "served", and since service was effected on the respondent only on 28.08.2018 i.e., after the deadline had been crossed, which, as noted above, was 17.08.2018, the entire proceedings carried out against the respondent had failed.
5.1 In the alternative, Mr Manish also argues that no material was produced before the authorities below to show that the SCN was dispatched, as claimed by the appellant/revenue, on 14.08.2018.
6. Accordingly, the appellant/revenue will place on record, the proof, which would inter alia include an Acknowledgement Due (AD) receipt or tracking report, the mode and manner of service, as statutorily provided in Section 153 of the Customs Act, 1962.
7. Therefore, the appeal is admitted.
8. The following questions of law are framed:
(i) Whether the expression "issue" as obtaining in Regulation 20(1) of 2013 Regulations should be read as "served."?
(ii) Whether the failure to serve the SCN upon the assessee, within the ninety (90) days prescribed under Regulation 20(1) of 2013 Regulations, would result in the failure of the adjudicatory process, as it would have a cascading effect on the other timelines provided in Regulation 20 of the 2013 Regulations?
9. Counsel for the parties will file their written submissions, having regard to the issue(s) involved in the present matter. 9.1 The written submissions shall not exceed three pages each, and will Signature Not Verified Digitally Signed CUSAA 223/2019 Page 3 of 4 By:VIPIN KUMAR RAI Signing Date:23.10.2022 22:29:23 be filed at least five (5) days before the next date of hearing.
10. Accordingly, list the appeal on 19.12.2022.
RAJIV SHAKDHER, J TARA VITASTA GANJU, J SEPTEMBER 23, 2022 / tr Click here to check corrigendum, if any Signature Not Verified Digitally Signed CUSAA 223/2019 Page 4 of 4 By:VIPIN KUMAR RAI Signing Date:23.10.2022 22:29:23