Page 152 - ELT_1st August 2020_Vol 373_Part 3

334 EXCISE LAW TIMES [ Vol. 373

need not be strictly adhered to. Considering all such aspects, the Learned Judge
upheld the contention raised and set aside the impugned notice.
45. Masterstroke Freight (supra) and Saro International Freight System (su-
pra) were decided by the same Learned Judge. The former decision was followed
in the latter. With respect, the Learned Judge appears to have taken a too narrow
legalistic view on the basis of certain decisions of the Supreme Court laying
down the law that when a statute requires a thing to be done in a particular
manner, it must be performed in such a manner or not at all. The Learned Judge
also construed ‘shall’ in Regulation 20(1) as mandatory and not directory.
46. The Learned Judge in Masterstroke Freight (supra) and Saro Interna-
tional Freight System (supra) further expressed the view that if timely action is not
taken under Regulation 20, that “would also pave way for inaction by the offi-
cials breeding corruption”. Yes, indeed, but viewed from a different angle one
cannot ignore the ground realities. If an unscrupulous broker commits an act that
makes it liable to be proceeded against under Regulation 18 read with Regulation
20, it may well get away by adopting illegal means. All officers are not honest
and if too strict a view is taken on the aspect of time-limit mentioned in Regula-
tion 20(1), the same instead of suppressing the mischief would have the potential
of promoting illegal activities. This Bench is persuaded to take this view bearing
in mind the illuminating observations in Dalchand (supra).
47. Interestingly, the decision of the Supreme Court reported in AIR
1980 SC 303 (Sharif-ud-din v. Abdul Gani Lone) was noticed by the Learned Judge
while authoring both the decisions and a passage therefrom is found to be quot-
ed in the same. The last sentence from the quoted passage is relevant and reads
thus :
“Whenever a statute prescribes that a particular act is to be done in a par-
ticular manner and also lays down that failure to comply with the said re-
quirement leads to a specific consequence, it would be difficult to hold that
the requirement is not mandatory and the specified consequence should not
follow.”
48. The Learned Judge also quoted a paragraph from a decision of the
Madras High Court itself reported in 2015 (318) E.L.T. 83 (Mad.) (Hyundai Motors
India Ltd. v. Union of India), wherein the Learned Judge observed :
“Another simple test to determine whether a time-limit stipulated in a rule
is directory or mandatory, is to see whether there is any indication in the
Rule itself about the consequences of non-compliance with the same. If a
statutory provision contains a prescription and also stipulates the conse-
quences of non-compliance with the condition, it would normally be taken
to be mandatory. If the consequences of non-compliance are not indicated,
then, the provision has to be seen only as directory.”
49. What follows from the above is that a consequence of not doing a
particular act, if provided in the statute, would in most cases be determinative.
Viewed in the light thereof, the relevant regulation (Regulation 20) not providing
for any consequence that might necessarily follow in favour of a customs broker
should any of the acts envisaged therein be not performed within the specific
time frame provided therefor, has to be construed as directory.
50. The same view appears to have been taken in the Division Bench
decision of this Court in Md. Yeasin (supra), relied on by Mr. Saraf. Clause 21 of
the West Bengal Public Distribution System (Maintenace and Control) Order,

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