Page 151 - ELT_1st August 2020_Vol 373_Part 3

2020 ] ASIAN FREIGHT v. PRINCIPAL COMMR. OF CUS. (AIRPORT & ADMINISTRATION) 333

vention of public mischief, but the enforcement of a particular provision lit-
erally to its letter will tend to defeat that design, the provision must be held
to be directory, so that proof of prejudice in addition to non-compliance of
the provision is necessary to invalidate the act complained of. It is well to
remember that quite often many rules, though couched in language which
appears to be imperative, are no more than mere instructions to those en-
trusted with the task of discharging statutory duties for public benefit. The
negligence of those to whom public duties are entrusted cannot by statuto-
ry interpretation be allowed to promote public mischief and cause public
inconvenience and defeat the main object of the statute. It is as well to real-
ise that every prescription of a period within which an act must be done, is
not the prescription of a period of limitation with painful consequences if
the act is not done within that period. ***”
43. Looking to the object of the statute in question (the 2013 Regula-
tions read with the Customs Act) and its broad purpose, and on weighing the
consequence that would ensue if the time-limit in Regulation 20(1) for issuance of
show notice were held mandatory instead of holding it to be directory, it is well-
nigh difficult to conclude that unless revocation proceedings are initiated within
ninety days of receipt of an offence report, the principal commissioner or the
commissioner of Customs, as the case may be, would stand denuded of the pow-
er to proceed in that direction. This Bench is of the opinion that the time-limit
that has been prescribed serves a dual purpose. First, it acts as a check on the
public functionary vested with the power to initiate revocation proceedings not
to keep the issue pending ad infinitum; if proceedings are not initiated within the
stipulated time, that might expose such functionary empowered to initiate pro-
ceedings to disciplinary action. On the other hand, initiation of proceedings with-
in ninety days or immediately thereafter is intended to guarantee protection to a
Customs broker of not being proceeded against on the basis of stale charges. But
to hold that in every case where revocation proceedings are not initiated within
the time-limit in Regulation 20(1) a Customs broker may get away, is too far-
fetched a construction and is unacceptable. What is important is that Regulation
20 does not provide for any consequence, should proceedings be not initiated
within ninety days of receipt of an offence report. One may in this connection
note Section 110(2) of the Customs Act ordaining that where any goods are
seized under sub-section (1) and no notice in respect thereof is given under
clause (a) of Section 124 within six months of the seizure of the goods, the goods
shall be returned to the person from whose possession they were seized. It is axi-
omatic that upon a failure to give notice as contemplated in Section 124(a) within
six months of seizure, the consequence would follow i.e. the seized goods have to
be returned. If any authority is required on the point, reference may usefully be
made to the decision reported in 100 C.W.N. 429 (India Sales International v. Col-
lector of Customs). Similar such consequence being clearly absent in Regulation
20(1), the time-limit has to be construed as directory and not mandatory.
44. It is now time to consider the three Madras High Court decisions. In
A.M. Ahamed (supra), Regulation 22 of the 2004 Regulations was under consider-
ation. Finding that separate time frames were provided in the various sub-
regulations of Regulation 22 to regulate the proceedings from its commencement
till its conclusion, the Learned Judge was of the view that the show cause notice
ought to have been issued within ninety days. Significantly, in paragraph 25 of
the decision it is recorded that the respondents did neither contend that the time-
limit of ninety days was directory and not mandatory, nor that the time-limit

EXCISE LAW TIMES  1st August 2020  151