2012 (10) TMI 638 - SC - Customs

Granting of CHA license CHA are governed under regulation Customs House Agents Licensing Regulations, 1984 & 2004 To carry the business as CHA, agent is required to get license from prescribed authority the applicant is required to clear the written as well as oral examinations to be held in terms of Clause 8 of those regulations to get license Held that - The examinations held under the 1984 Regulations did not get nullified with the enactment of the 2004 Regulations and the candidates who had qualified the examinations held under the 1984 Regulations are not required to again qualify the examination which may be held under the 2004 Regulations. As a corollary, it must be held that those who had cleared the examinations held between 1995 and 2003 under the 1984 Regulations would be eligible for grant of licence subject to their fulfilling other conditions of eligibility.

Summary

Issues Involved:
1. Entitlement of appellants to regular licences under Customs House Agents Licensing Regulations, 1984.
2. Impact of the Customs House Agents Licensing Regulations, 2004 on the appellants' rights.
3. Validity of the Public Notice dated 20.06.2003 and subsequent actions by the Commissioner.
4. Interpretation of the saving clause in the 2004 Regulations.
5. Retrospective application of the 2004 Regulations.

Issue-wise Detailed Analysis:

1. Entitlement of appellants to regular licences under Customs House Agents Licensing Regulations, 1984:
The core issue was whether the appellants, who cleared examinations under the 1984 Regulations, were entitled to regular licences as Custom House Agents. The appellants had initially been granted G-Cards and qualified examinations between 1995 and 2003. They applied for temporary licences as per Public Notice No. 25/2003. However, the process was halted due to impending amendments to the regulations.

2. Impact of the Customs House Agents Licensing Regulations, 2004 on the appellants' rights:
The 2004 Regulations, notified on 23.02.2004, replaced the 1984 Regulations. The new regulations did not envisage temporary licences and required applicants to pass written and oral examinations. However, the saving clause in the 2004 Regulations indicated that actions taken under the 1984 Regulations were preserved. The appellants argued that having passed the examinations under the 1984 Regulations, they should not be required to re-qualify under the 2004 Regulations.

3. Validity of the Public Notice dated 20.06.2003 and subsequent actions by the Commissioner:
The Public Notice dated 20.06.2003 invited applications for temporary licences under the 1984 Regulations. Before the process could be completed, the Ministry of Finance issued a letter to keep the recruitment process in abeyance pending new regulations. The Commissioner later issued a circular declaring the 563 applications received under the 1984 Regulations invalid post-enactment of the 2004 Regulations. The High Court's learned Single Judge found that the failure to process these applications could not deprive the appellants of their rights under the 1984 Regulations.

4. Interpretation of the saving clause in the 2004 Regulations:
The saving clause in the 2004 Regulations stated that actions taken under the 1984 Regulations were preserved. The Supreme Court held that this clause meant that examinations held under the 1984 Regulations remained valid, and those who passed did not need to re-qualify under the 2004 Regulations. The Division Bench's introduction of the concept of vacancies and limiting the number of licences was found unjustified.

5. Retrospective application of the 2004 Regulations:
The Court noted that the Customs Act did not empower the Board to make regulations with retrospective effect. Thus, the 2004 Regulations could not retroactively affect the eligibility of those who had qualified under the 1984 Regulations. The saving clause confirmed that the Board did not intend to negate the rights of those who passed the earlier examinations.

Conclusion:
The Supreme Court concluded that the appellants, having cleared the examinations under the 1984 Regulations, were entitled to licences under the 2004 Regulations, subject to fulfilling other conditions. The Division Bench's judgment was set aside, and the learned Single Judge's order was restored. The appeals were allowed, and the parties were directed to bear their own costs.