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2013 (1) TMI 417 - HC - CustomsWrit of Certiorarified Mandamus - change in constitution of the Custom House Agent licence from a firm to a limited company - declining to accept the appointment of Shri S.Suryanarayana as power of attorney agent of the Custom House Agent in the place of late Abdul Khader on the ground being not a person qualified under Section 8 of the CHALR, 2004 to be appointed as POA - Held that - Proviso to Regulation 8 clearly states that examination of the applicant will not be necessary, if he has already passed the examination referred to in Regulation 8. Further, Regulation 15 only speaks about change in the constitution of the firm or company for which fresh application should be made. That cannot be confused with the eligibility of a particular candidate to be appointed as power of attorney agent if he is otherwise qualified. The authority has confused himself with application under Regulation 15 with the status of a candidate for appointment as power of attorney in the place of late Abdul Khader. Thus clubbing of two issues appears to be inappropriate As decided in SUNIL KOHLI & ORS Versus UNION OF INDIA & ORS 2012 (10) TMI 638 - SUPREME COURT t under the 2004 Regulations read with proviso to Clause 8(1), candidates who have already passed the examination under the 1984 Regulation should be considered for grant of licence under the 2004 Regulation. The POA in this case is qualified under the 1984 Regulation thus the respondent is not justified in denying the approval of appointment of Shri Suryanarayana as power of attorney of CHALR only on the ground that he has not qualified under 2004 Regulations - in favour of petitioner - assessee.
Issues:
Interpretation of Regulation 15 of the Custom House Agents Licence (CHALR) 2004 regarding change in constitution of a firm into a limited company, and the eligibility of a candidate appointed as a power of attorney agent under the said regulation. Analysis: Issue 1: Interpretation of Regulation 15 of CHALR 2004 The petitioner, a partnership concern reconstituted into a limited company, applied for a change in constitution under Regulation 15 of the CHALR 2004. The Assistant Commissioner declined the appointment of the new power of attorney agent, Shri S.Suryanarayana, citing non-qualification under Section 8 of the CHALR 2004. However, the petitioner argued that the application under Regulation 15 does not equate to the eligibility of a power of attorney agent. The Court referred to a previous Apex Court judgment which clarified that candidates who passed the examination under the 1984 Regulation should be considered for a license under the 2004 Regulation. The Court held that the denial based on the POA's qualification under the 2004 Regulation was incorrect, and directed a reconsideration. Issue 2: Eligibility of Candidate under 1984 vs. 2004 Regulations The Court emphasized that the POA, Shri Suryanarayana, had passed the examination under the 1984 Regulations, which was not disputed by the respondents. The Court highlighted the Apex Court's ruling that candidates qualifying under the 1984 Regulation should be eligible for a license under the 2004 Regulation. The Court found the denial of the appointment based on the 2004 Regulation's qualification criteria to be contrary to the law and directed a reevaluation of the issue. Conclusion: The Court allowed the writ petition, setting aside the denial of the appointment of the power of attorney agent and directing a reconsideration of the application under Regulation 15 without the qualification under the 2004 Regulation being a hindrance. The judgment emphasized adherence to the legal principles established by the Apex Court regarding the eligibility of candidates under different regulations and the need for a correct interpretation of the law in such matters.
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