2017 (10) TMI 702 - HC - Central Excise

Grant of new CHA license - application for grant of new custom brokers license rejected on the ground that condition specified in clause (e) of the Regulation 5 is not satisfied - Held that - If the Applicant, who applies for a license has been convicted by a competent Court for the offences provided in any of the said three enactments, the disqualification in clause (d) will be applicable. If a Criminal Proceeding is pending in which the Applicant is being prosecuted for any such offences, it will also operate as a disqualification under Clause (d). Clause (e) uses the word penalized as distinguished from the word convicted in clause (d) - Clause (e) will apply when the Applicant who applies for license has been penalised by imposing penalty for any act or omission which attracts imposition of penalty under the said Act, the Central Excise Act, 1944 and the Finance Act, 1994 - the disqualification Clause (d) uses the word convicted as distinguished from Clause (e), which uses the word penalised . In the facts of the present case, it is an admitted position that an penalty has been imposed on the Petitioners and the order imposing penalty has not been challenged by the Petitioners. Therefore, there is no merit in the challenge to the order passed by the licensing authority rejecting the application for grant of license. Petition dismissed - decided against petitioner.

Issues:
1. Interpretation of clause (e) of Regulation 5 for grant of a custom broker license.
2. Application of disqualifications under Regulation 5 for license grant.
3. Distinction between conviction and penalty under the Customs Act, Central Excise Act, and Finance Act.

Detailed Analysis:
1. The judgment dealt with the interpretation of clause (e) of Regulation 5 concerning the grant of a custom broker license. The Petitioners challenged the rejection of their license application by the Deputy Commissioner of Customs based on the non-satisfaction of conditions specified in clause (e) of the Regulation. The Petitioners argued that the disqualification under clause (e) should apply only if the Applicant has been convicted of any offenses under the Customs Act, Central Excise Act, and Finance Act. The Petitioners contended that not all violations of these enactments are offenses, some attract penalties, and some lead to criminal convictions. The Court examined the scheme of the said enactments and noted that clause (e) uses the term "penalized," which is distinct from "convicted" in clause (d). The Court held that if a penalty has been imposed on the Applicant under any of the three enactments, the disqualification under clause (e) would be applicable.

2. The Court analyzed the conditions specified in Regulation 5 for the grant of a custom broker license. Clause (d) of Regulation 5 pertains to disqualification in case of conviction by a competent Court for an offense or pendency of criminal proceedings. The judgment emphasized that conviction for an offense by a competent Court acts as a disqualification. The Court highlighted that the disqualification under clause (d) applies when the Applicant has been convicted for offenses punishable under the said enactments. Additionally, if there are pending criminal proceedings against the Applicant for such offenses, it also results in disqualification under clause (d). The judgment clarified that the disqualifications under clauses (d) and (e) operate in different scenarios based on convictions and penalties, respectively.

3. The judgment delved into the distinction between conviction and penalty under the Customs Act, Central Excise Act, and Finance Act. It outlined that specific provisions in these statutes empower the imposition of penalties for various lapses or non-compliances. The Court noted that while clause (d) of Regulation 5 applies in cases of conviction for offenses, clause (e) applies when an Applicant has been penalized for acts or omissions attracting penalties under the said enactments. The Court emphasized that the term "convicted" in clause (d) differs from "penalized" in clause (e), indicating distinct disqualification criteria based on criminal convictions and penalties. The judgment concluded that since a penalty had been imposed on the Petitioners, and they did not challenge the order, the rejection of their license application was upheld.

In conclusion, the High Court of Bombay clarified the interpretation of Regulation 5 clauses (d) and (e) regarding disqualifications for the grant of a custom broker license under the Customs Act, Central Excise Act, and Finance Act. The judgment underscored the distinction between convictions and penalties, emphasizing the applicability of disqualifications based on the nature of legal violations.

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