2009 (4) TMI 39 - HC - Customs

CHA licence - Challenge to impugned Customs House Agents Licensing Regulations 2004 which were issued by CBEC in suppression of the old CHALR1984 and challenge to public notice bearing No.140/2008 petitioner claim that since they have qualified exams under Regulation-9 of CHALR 1984 they should not be forced to write the qualifying examination under the new Regulations such benefits of licences have been granted to similarly placed persons in Delhi and Punjab in pursuance of orders of High Courts - Central Government may take appropriate steps by invoking the power under Section 161 of the Customs Act 1962 and remove the difficulties arising out of the implementation of the 2004 Regulations in one area while not implementing the same in other areas (Delhi and Punjab)

Summary

Issues Involved:
1. Challenge to the notification inviting applications for Customs House Agents (CHA) licences under the 2004 Regulations.
2. Validity and applicability of the Customs House Agents Licensing Regulations, 2004, vis-`a-vis the 1984 Regulations.
3. Legitimate expectation and vested rights of the petitioners who qualified under the 1984 Regulations.
4. Application of Section 6 of the General Clauses Act and Section 159-A of the Customs Act, 1962.
5. Relief sought by petitioners in light of similar cases in other High Courts.

Issue-Wise Detailed Analysis:

1. Challenge to the Notification Inviting Applications under the 2004 Regulations:
The petitioners challenged the notification inviting applications for CHA licences under the 2004 Regulations, arguing that they had already qualified under the 1984 Regulations and should not be required to re-qualify. The court noted that the petitioners had passed the qualifying examination under the 1984 Regulations but had not been granted temporary or regular licences due to the non-issuance of notifications by the Commissionerates in Tamil Nadu for over a decade.

2. Validity and Applicability of the 2004 Regulations:
The court examined the scheme of the 1984 and 2004 Regulations. The 2004 Regulations superseded the 1984 Regulations and introduced new qualifications and conditions for the grant of CHA licences. The court found that the petitioners had not acquired any vested right or even an "inchoate right" under the 1984 Regulations, as they had only passed the qualifying examination without being granted temporary licences.

3. Legitimate Expectation and Vested Rights:
The court rejected the petitioners' claim of legitimate expectation, stating that the doctrine of legitimate expectation requires a representation or promise by the authority or a consistent past practice. The court found no such representation or practice in this case. The court also cited several Supreme Court judgments to support its view that the petitioners had not acquired any enforceable right or legitimate expectation.

4. Application of Section 6 of the General Clauses Act and Section 159-A of the Customs Act, 1962:
The petitioners argued that their rights were saved by Section 6 of the General Clauses Act and Section 159-A of the Customs Act, 1962. The court held that these provisions apply only to actions done or omitted to be done under the repealed regulations. Since no action was taken by the respondents under the 1984 Regulations to invite applications or issue licences, the court found that the petitioners could not invoke these provisions to claim any rights.

5. Relief Sought by Petitioners in Light of Similar Cases in Other High Courts:
The petitioners relied on decisions of the Delhi High Court and the Punjab and Haryana High Court, where similarly placed individuals were granted CHA licences under the 1984 Regulations. The court acknowledged that licences had been granted to individuals in Delhi and Punjab, subject to the outcome of appeals. The court directed the Central Board of Excise and Customs to examine the matter and come up with a scheme to extend similar benefits to the petitioners. If the Board could not do so, the court suggested that the Central Government take appropriate steps under Section 161 of the Customs Act, 1962, to remove the difficulties arising from the implementation of the 2004 Regulations.

Conclusion:
The court dismissed the challenge to the 2004 Regulations and the notification inviting applications but directed the Central Board of Excise and Customs to consider extending similar benefits to the petitioners as granted to individuals in Delhi and Punjab. The court emphasized the need for uniformity and fairness in the implementation of the regulations across different regions.