2013 (1) TMI 724 - HC - Customs

Rejection of CHA License - whether the application of the petitioner No. 1 for license under CHALR 2004 could have been rejected on the ground that the petitioner No. 1 had cleared the examination under Regulation 9 of CHALR 1984 from Mumbai and not from Kolkata - Held that - CHALR 1984 provided for grant of a temporary licence, and later, upon clearance of an examination, as provided in Regulation 9, regular licence which was to be valid for a period of five years, but renewable. CHALR 2004 has, however, done away with grant of two licences, one temporary and the other regular. Regulation 9 provides for grant of licence to an applicant who has passed the examination referred to in Regulation 8 subject to payment of the requisite fee - Regulation 6 enumerates the conditions required to be fulfilled for grant of licence. Regulation 6 provides that the applicant or the person referred to in Clause (b) of sub-regulation (2) or Clause (b) of sub-regulation (3) of Regulation 5, as the case may be, or a person who has passed the examination referred to in Regulation 8 shall prove to the satisfaction of the Commissioner of Customs that the applicant or his authorized employee is a graduate from a recognized University and possesses the professional degree as specified in the said regulation, has diploma in customs clearance work from any Institute or University recognized by the Government with working knowledge of computers and customs procedures; or is a graduate having at least 3 years experience in transacting Customs House Agent work as a G Card holder; or a person who has passed the examination referred to in Regulation 8; or is a retired Group A officer from the Indian Customs and Central Excise Service having a minimum of ten years experience in Group A In view of the judgment of the Hon ble Supreme Court in Sunil Kohli (2012 (10) TMI 638 - SUPREME COURT), the impugned order cannot be sustained and the same is set aside and quashed. - The respondent shall issue requisite customs house agents licence to the petitioner within two months from the date of communication of this order subject to compliance of the requisite formalities but without insisting on clearance of the examination under Regulation 8 of the CHALR, 2004. - Decided in favour of appellant.

Summary

Issues Involved:
1. Rejection of Customs House Agents (CHA) licence application.
2. Examination requirements under CHALR 1984 vs. CHALR 2004.
3. Principles of natural justice.
4. Applicability of previous examination qualifications under new regulations.
5. Supreme Court's affirmation of the High Court's view.

Issue-wise Detailed Analysis:

1. Rejection of Customs House Agents (CHA) licence application:
The writ application challenges the order dated 8th July 2008 by the Joint Commissioner of Customs (CHA), Kolkata, which rejected the petitioner's CHA licence application. The rejection was based on the petitioner not passing the examination under Regulation 8 of the Customs House Agents Licensing Regulations, 2004 (CHALR 2004).

2. Examination requirements under CHALR 1984 vs. CHALR 2004:
The petitioner had passed the examination under Regulation 9 of the Customs House Agents Licensing Regulation, 1984 (CHALR 1984). Under Section 146 of the Customs Act, no person can carry on business as an agent without a licence. The CHALR 1984 allowed for a temporary licence, which could be converted to a regular licence upon passing an examination. CHALR 2004, however, eliminated the two-step licensing process, requiring only one examination under Regulation 8.

3. Principles of natural justice:
The petitioner argued that the rejection of their application was in violation of the principles of natural justice, as they were not given an opportunity to be heard before the decision was made.

4. Applicability of previous examination qualifications under new regulations:
The central question was whether the petitioner's qualification under CHALR 1984 was valid under CHALR 2004. The High Court referred to a previous judgment (W.P. No. 204 of 2006) which stated that a temporary licence holder who passed the examination under CHALR 1984 did not need to clear an examination under CHALR 2004 for a permanent licence. The Court noted that the syllabus under both regulations was almost identical except for minor additions in CHALR 2004.

5. Supreme Court's affirmation of the High Court's view:
The High Court's view was affirmed by the Supreme Court in the case of Sunil Kohli v. Union of India, which held that the examination passed under CHALR 1984 suffices for licensing under CHALR 2004. Consequently, the impugned order rejecting the petitioner's application was set aside.

Conclusion:
The Court directed the respondent to issue the requisite CHA licence to the petitioner within two months, subject to compliance with the requisite formalities but without insisting on the clearance of the examination under Regulation 8 of CHALR 2004. The judgment emphasized the continuity of qualifications across regulatory updates and upheld the principles of natural justice. There was no order as to costs, and urgent certified copies of the order were to be supplied to the parties upon compliance with formalities.