BHARATI H.DANGRE,J. - (1.) This group of appeals came to be admitted on the following substantial question of law. (1) Whether the CESTAT is right in law in setting aside the order or suspension of the Custom Broker Licence on the ground of delay between the suspension and the notice of deviation or omission, ignoring that DRI letter dated 24th July 2014 and the Custom Broker Licence was suspended on 8th August 2014 ? (2) Whether the Appellate Tribunal completely ignored the two decisions of this Court relied upon in paragraph 3, do not lay down as an absolute proposition of law that the delay in taking immediate action of suspension vitiates the action of the Commissioner of suspending the licence? Since all the appeals involve the similar question of law and particularly whether the inquiry report has to be submitted from the period of 90 days from the date of issue of notice under Sub regulation (1) of Regulation 20 of 2013, all the appeals were directed to be listed and heard on the same date. It was agreed by both the parties that all the appeals whether admitted, pending for admission or otherwise, can then be conveniently disposed of. Hence, all the aforesaid appeals were heard together and the parties advanced their submissions on the said point of law by referring to the distinct facts involved in each appeal. The Principal Commissioner of Customs (General), who has filed the appeals, is represented by the learned Counsel Mr. Jetley who would argue that the provision contained in Regulation 19 and 20 of the CBLR2013 is to be construed as directory, whereas, the learned counsel representing the Customs Broker Licence - respondents in the appeals, would urge the Court to construe the said provision as mandatory and prays for upholding the order passed by CESTAT, in the light of the various judgements delivered by different High Courts construing the said provisions to be mandatory.
(2.) For effective adjudication of the appeals, it would be necessary to refer to the statutory schemes as contained in the Customs Act, 1962 as well as in the Customs House Licensing Regulation ("CHLR", for short) as notified from time to time. The Customs Act, 1962 recognises the 'Customs Brokers' and contains a provision for grant of licence in their favour in accordance with the Regulation. Section 146 imposes restrictions on any person to carry on business as Customs Broker relating to the entry or departure of conveyances or the import or export of goods at any customs station unless such a person holds a licence granted in this behalf in accordance with the Regulation. The Central Board of Excise and Custom ("CBEC", for short) under the Central Boards Revenue Act, 1963, is empowered to make Regulations for the purpose of carrying out the provisions of Section 146 and authorises it to make Regulation which may provide for the authority by whom licence may be granted, period of validity of such licence, qualification of a person who may apply for such licence, and also to prescribe circumstances in which the licence may be suspended or revoked. In exercise of power conferred by Subsection (2) of Section 146 of the Customs Act, 1962, Regulations have been framed from time to time and the regulations which are in existence and governing the group of appeals is the Customs House Licensing Regulation of 2013 ("CHLR 2013", for short).
(3.) The Customs House Agent Licence Regulation, 2004 ("CHALR 2004", for short) were brought into force by notification issued on 23rd March, 2004 by the Central Board of Excise and Customs. The Regulation defines Custom House Agent as an agent for transaction of any business relating to the entry or departure of conveyances or import or export of goods at any customs stations. Regulation 20 contained a provision for suspension or revocation of licence by the Commissioner of Customs on the grounds mentioned therein. Sub clause (2) of the said Regulation authorises the Commissioner of Customs to suspend the licence of a CHA pending or contemplating an inquiry, where immediate action was necessary in appropriate cases. Regulation 22 prescribed the procedure for suspension or revocation of licence under Regulation 20. Regulation 22 reads thus: 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 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 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 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 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 subsection (1) of section 129 of the Act. The CHALR-2004 came to be amended by notification dated 8th April, 2010 and the time limit came to be incorporated in sub clause (2) of Regulation 20 and sub clause (3) came to be added to the same Regulation where it contemplated a post decisional hearing on suspension of a licence, within a period 15 days from the said suspension and thereafter passing of an order revoking the suspension or continuing it. Sub Regulation (2) and (3) which came to be inserted read thus : (2) Notwithstanding anything contained in sub regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, (within fifteen days from the date of receipt of a report from investigating authority, suspend the licence) of a Customs House Agent where an inquiry against such agent is pending or contemplated. (3) Where a licence is suspended under sub regulation(2), notwithstanding the procedure specified under regulation 22, the Commissioner of Customs may, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs House Agent whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs House Agent".;