Custom, Excise & Service Tax Tribunal
Rajeev Mayer vs Cc (General), New Delhi on 1 June, 2016
CUSTOMS, EXCISE AND SERVICE TAX APPELLATE TRIBUNAL, PRINCIPAL BENCH NEW DELHI Date of Hearing/Decision:01.06.2016 Customs Appeal No.50218/2015 [Arising out of Order-in-Original No. 60/SRB//POLICY/2014 dated 26.09.2014 passed by the Commissioner of Customs (I &G), New Delhi] Rajeev Mayer Appellant Vs. CC (General), New Delhi Respondent
Appearance:
Rep. by Dr. G.K. Sarkar, Advocate and Shri Prashant Srivastava, Advocate for the appellant. Rep. by Shri K. Poddar, DR for the respondent Coram : Honble Shri D.N. Panda, Member (Judicial) Honble Shri B. Ravichandran, Member (Technical) Final Order No. 51963/2016 /Dated:01.06.2016 Per D.N. Panda:
Dr. G.K. Sarkar, ld. Counsel submits that date of knowledge of the offence committed by CHA, is crucial for commencement of limitation under law and invoking of the provisions of Regulation 20(2) of the CHALR, 2004. That was 1.4.2013. When that was the date from which the limitation gave rise to the proceedings under the above regulation either for suspension or revocation, such mandate of law was not followed by the Authority. For the failure to adhere to the time frame prescribed by law, the order of suspension of the licence of this appellant was set aside by Tribunal by a detailed Order No. 52414 - 52415 dated 29.05.2014 in Appeal No. C/57236 & 60410/2013 recording departure to the time frame of law. In absence of any cogent evidence brought on record by the Revenue, this factual position remain undisturbed.
2. The Authorities below without carrying out above order of the Tribunal flouted the same and revoked the licence of the appellant by the impugned order dated 26.9.2014. There was total disregard to the judicial discipline. Therefore impugned order without having foundation falls on the ground. Ld. Counsel says that when proceedings under Regulation 20(2) of CHALR, 2004 suffers from bar of limitation, that fails to sustain in respect of further proceeding.
3. Revenue supports the impugned order and fails to show the manner in which order dated 29.5.2014 passed by Tribunal was implemented.
4. Heard both sides and perused the record.
5. Time being essence of law for punitive action that cannot be said to be immaterial. Suspension and revocation of licence debars a CHA from his livelihood. Therefore every action of the authority in such circumstances should be timely without dragging the victim to hunger for ever. Regulations therefore consciously prescribed time limit for exercise of authority without delay and timely completion and initiation of proceeding thereunder. Time limit prescribed by law for proceeding under Regulation 22 is not casual. Belated proceedings are time barred and do not get sanctioned of law as has been held in the case of A.M. Ahamded & Co. 2014 (309) ELT 433 (Mad) followed by M/s. Masterstroke Freight Forwarders Pvt. Ltd. 2015-TIOL-2847-HC-MAD-CUS] as well as Saro International Freight System-2015-TIOL-2916-SC-MAD-CUS.
6. This Bench had occasion to come across a case of the above nature in the case of Ambica Enterprises vs. CC (Import & General), New Delhi in Appeal No. C/53246 of 2015 and C/3650 of 2012 disposed on 26.05.2016 wherein it has been held that time being essence of law, non adherence thereto makes the action of the Authority void. For convenience of reading, para-9 of that order is reproduced below:
9. The Honble High Court of Madras in A.M. Ahamed & Co. vs. Commissioner of Customs (Imports), Chennal 2014 (309) ELT 433 (Mad.) 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. Honble Madras High Court has further emphasized the observance of time limits strictly under CHALR 2004/CBLR 2013 in Saro International Freight Systems vs. Commissioner of Customs, Chennai reported in 2015 TIOL 2916 HC MAD CUS. The Honble High Court in para 28 of the above judgment has held:
28. .. 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 8.4.2010, the necessary to include a time limit for initiating action was addressed by the Board after filed inspection and by an notification dated 8.4.2010, amendments prescribing time period for initiating action and completing proceedings was made. The same was given effect by notification dated 20.1.2014. Whereas , under CBLR, 2013 having found the necessity to prescribe a period, the Central Board, the statutory authority had included the same in Regulations itself, when they were brought into force. Therefore, when 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.
The ratio of the above decisions that the time limits prescribed are to be mandatorily followed has also been followed by this Tribunal in several decisions such as-
(i) 2016-TIOL-157-CESTAT-DEL M/s Altharva Global Logistics vs. Commissioner of Customs, New Delhi
(ii) 2015-TIOL-2467-CESTAT-DEL M/s Lohia Travels and Cargo vs. Commissioner of Customs (General), New Delhi.
(iii) 2016-TIOL-524-CESTAT-DEL M/s Zen Cargo Movers Pvt. Ltd. vs. Commissioner of Customs, New Delhi.
7. Apex Court in the case of Kamlakshi Finance Corporation Ltd. 1991 (55) ELT 433 (SC) held that subordinate authority should not flout the orders of higher Court but shall regard the same and implement. Action of the ld. Commissioner in the present case therefore invites contempt proceedings before the High Court of Delhi for his utter disregard to the order dated 29.5.2014 passed by Tribunal..
8. Considering the law laid down as above as well as facts and circumstances and suffering of the CHA for the last 3 years and the fact that the Authority has immediately revoked the licence of the appellant without implementing the order of the Tribunal, the order of revocation is set aside being barred by limitation. It is made clear that when order of suspension failed to stand, the order of revocation also lost its existence.
9. Appellant says that term of his licence in the mean time has expired. The Authority is directed to consider renewal of the CHA licence expeditiously without delay since from the date of suspension i.e. 30.01.2013 the CHA has already undergone suffering for more than three years.
10. The appeal is allowed with above directions.
[Order dictated & pronounced in open court] ( D.N. Panda ) Member (Judicial) ( B. Ravichandran ) Member (Technical) Ckp.
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