2012 (6) TMI 54 - AT - Customs

Rejection of application for renewal of license - Whether the appeal against the order of Commissioner of Customs for rejection under Regulation (11) of CHA 2004 would lie before the Tribunal Held that - There is a specific provision for filing of appeal to the Tribunal under Regulation, 23(8) against orders of suspension or rejection of license but there is no such provision in the case of rejection of renewal of license - the period of license is fixed under Regulation 12 and on expiry of the same license can be renewed under Regulation 11 - suspension/ revocation of licence and non-renewal of license are to be treated on different footings - right of appeal is a creature of statute and there being no provision under which a CHA could file appeal before this Tribunal against order rejecting the renewal application on reading Regulation 9 with Regulation 11 even if an application for renewal is treated as a fresh licence, the Regulations permitted appeal only where an application is rejected under Regulation 9(3)and Regulation 11 does not so provide. Whether CHA may avail the remedy against the order of rejection of application for renewal of license under sub-regulation (5) of Regulation (9) of the said Regulation Held that - It is seen that when a fresh application for issuance of license is filed and the same stands rejected by the Commissioner, there is a specific provision for filing an appeal before the Chief Commissioner of Customs, in terms of clause 5 of Regulation 9 - The CHA license holder is at liberty to file an application before the Commissioner before the expiry of validity period for renewal of the license for a further period of ten years from the date of expiry- discrimination cannot be made on the ground that the application was for renewal of license and not for grant of fresh license.

Summary

Issues:
1. Appealability of rejection of application for renewal of license under Regulation 11 of CHA 2004 before the Tribunal.
2. Remedy available to CHA against rejection of application for renewal of license under sub-regulation (5) of Regulation 9 of CHA 2004.

Analysis:
1. The appeal was filed against the Commissioner's rejection of the application for renewal of CHA license under Regulation 11(2) of Customs House Agents Licensing Regulations, 2004. The Larger Bench referred to conflicting decisions and observed that while some cases allowed appeals before the Tribunal, others did not. The appellant argued that the Tribunal has jurisdiction under section 129A of the Customs Act, and since the Act does not exclude such appeals, they should be allowed. However, the Revenue contended that not all orders by the Commissioner constitute adjudication, and the rejection of renewal does not involve a lis or dispute between parties. The Tribunal noted the absence of a specific provision for appeal against rejection of renewal and upheld the decision in G.P.Jaiswal case, stating that no right of appeal exists in such cases.

2. The issue was also addressed by the High Courts of Bombay and Calcutta. The Bombay High Court in A.S.Vasan & Sons case held that no appeal lies against rejection of renewal under Regulation 11, as it differs from the considerations for granting a new license under Regulation 9. Similarly, the Calcutta High Court in M.Dutta Agency case emphasized that the rejection of renewal does not fall under the appealable clauses of the CHA Regulation Act. The Tribunal, bound by these decisions, concluded that no appeal is permissible against the Commissioner's rejection of license renewal under Regulation 11.

3. Regarding the remedy available to CHA against rejection of renewal, Regulation 9(5) allows for an appeal before the Chief Commissioner if the application for a new license is rejected. The Tribunal reasoned that since renewal is a continuation of the license, the rejection of renewal should be challengeable before the Chief Commissioner, similar to the rejection of a new license application. It emphasized that both rejections lead to the denial of the CHA to act, and hence, should be treated equally in terms of available remedies.

In conclusion, the Tribunal held that no appeal lies before the Tribunal against the rejection of a license renewal under Regulation 11 of CHA 2004. However, if a CHA is aggrieved by such rejection, they can challenge it before the Chief Commissioner as provided under Regulation 9(5) of the CHA Regulation.