2017 (3) TMI 590 - HC - Customs

Whether the respondents were required to give individual intimation to the petitioner with regard to oral examination held by them, for obtaining Customs House Agents License? Held that - the petitioner would be governed by the 2004 Regulations, wherein, under Clause (1) of Regulation 8, the respondents were required to give her an individual, albeit, advance intimation. The reason why the petitioner would be governed by the 2004 Regulations is that, she sat for the written examination, when 2004 Regulations were in vogue. Therefore, the actions taken under the said Regulations would stand saved under the 2013 Regulations. This is evident, apart from anything else, upon a bare perusal of the preface to the 2013 Regulations - giving intimation to the petitioner for oral examinations held on 05.04.2013 and 06.04.2013 via circular dated 28.03.2013 was not in order, as 2013 Regulations were notified only on 21.06.2013 - The respondents were required to send an intimation individually to the applicants/examinees and in this case, the petitioner herein, with regard to the oral examinations, which were supposedly held on 05.04.2013 and 06.04.2013. The fact that the said procedure was not followed, persuades to hold that the impugned order is flawed in law - petition allowed - decided in favor of petitioner.

Issues Involved:
1. Whether the respondents were required to give individual intimation to the petitioner regarding the oral examination for obtaining Customs House Agents License.

Issue-wise Detailed Analysis:

1. Requirement of Individual Intimation:
The primary issue raised in the writ petition was whether the respondents were obligated to provide individual intimation to the petitioner concerning the oral examination for obtaining the Customs House Agents License.

2. Examination of Respondents' Affidavit:
The affidavit filed by the respondents clearly indicated that there was no individual intimation given to the petitioner regarding the oral examination. The court needed to determine whether this failure to issue individual intimation was detrimental to the respondents' defense against the relief sought in the writ petition.

3. Challenge to the Order Dated 09.09.2015:
The petitioner challenged the order dated 09.09.2015, which stated that the petitioner had failed to clear the oral examination within the stipulated two-year period from the date of the written examination result, as per Regulation 6(5) of the Customs Brokers Licensing Regulations, 2013.

4. Regulations in Force:
At the time of the written examination, the Customs House Agents Licensing Regulation, 2004 (2004 Regulations) were in force. The petitioner was declared successful in the written examination on 17.02.2012 but failed the oral examination communicated on 30.04.2012. The petitioner was eligible for the oral examination held on 05.04.2013 and 06.04.2013, but the respondents claimed that the petitioner did not appear for these examinations.

5. Intimation by Circular:
The respondents argued that the petitioner was intimated about the oral examination via a circular dated 28.03.2013. The court had to examine whether such intimation by circular was sufficient or if individual notice was required.

6. Relevant Regulations:
The court examined Regulation 8 of the 2004 Regulations and Regulation 6 of the 2013 Regulations. Both regulations required the petitioner to appear for written and oral examinations, with individual intimation for the written examination and being "called for" the oral examination.

7. Interpretation of "Individual Intimation" and "Called For":
The court concluded that the expressions "individual intimation" and "called for" conveyed the same meaning. The 2004 Regulations required individual intimation for both written and oral examinations, while the 2013 Regulations split this requirement into separate clauses for written and oral examinations.

8. Contextual Framework:
The court emphasized the need to interpret the regulations in their contextual framework. The purpose of the regulations was to provide additional chances for applicants to clear the oral examination, which would be defeated if notice was given via a circular that might not be seen by the applicant.

9. Petitioner's Governance by 2004 Regulations:
The court held that the petitioner would be governed by the 2004 Regulations, as she sat for the written examination when these regulations were in force. The actions taken under the 2004 Regulations would be saved under the 2013 Regulations.

10. Invalid Circular Intimation:
The court found that the circular dated 28.03.2013, which purportedly intimated the petitioner about the oral examinations on 05.04.2013 and 06.04.2013, was not valid as the 2013 Regulations were notified only on 21.06.2013.

11. Flawed Impugned Order:
The court concluded that the impugned order was flawed in law as the respondents failed to send individual intimation to the petitioner for the oral examinations.

12. Availability of Alternate Remedy:
The court dismissed the respondents' argument that the petitioner had an alternate remedy by way of an appeal to the Central Excise Services Tax Appellate Tribunal (CESTAT). The court held that the availability of an alternate remedy does not preclude the court's jurisdiction under Article 226 of the Constitution, especially considering the delay and impact on the petitioner's livelihood.

Conclusion:
The court set aside the impugned order and directed the respondents to call the petitioner for the next oral examination, likely to be held in June 2017, with due written intimation via recorded delivery regarding the date, time, and venue of the examination. The writ petition was disposed of accordingly, with no order as to costs.

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