2006 (11) TMI 128 - HC - Customs

CCE & C refused to convert the temporary licence of CHA into regular he has passed the examination conducted under Old Customs House Agents Licensing Regulations - he is required to again pass the examination for the purpose of grant of regular licence and/or conversion of the temporary licence into regular one under the New Regulations of 2004 License can be converted only after passing exam referred to in Regulation 9 order of Comm.of Central Excise and Customs is proper

Issues Involved:
1. Validity of the rejection of the petitioner's request for conversion of a temporary licence into a regular licence under the Customs House Agents Licensing Regulations, 2004.
2. Requirement of passing the examination under the New Regulations for the conversion of a temporary licence into a regular one.
3. Applicability of the Central Board of Excise and Customs' Circular No. 42/2004-Cus., dated 10-6-2004.

Detailed Analysis:

Issue 1: Validity of the Rejection of the Petitioner's Request for Conversion of a Temporary Licence into a Regular Licence
The petitioner, K. Satya Rao, sought the quashing of the communication dated 23-1-2006, by which the Commissioner of Central Excise and Customs, Visakhapatnam-II, rejected the request for conversion of a temporary licence into a regular one under the Customs House Agents Licensing Regulations, 2004 (New Regulations). The petitioner argued that he had already passed the examination under the Customs House Agents Licensing Regulations, 1984 (Old Regulations) and that the rejection was without a hearing and lacked cogent reasons.

Issue 2: Requirement of Passing the Examination under the New Regulations
The respondents contended that the petitioner's request was rejected because he had not passed the required examination under Regulation 8 of the New Regulations. The New Regulations mandate that a person holding a temporary licence must pass the examination within two years. The petitioner argued that he should not be required to pass the examination again since he had already passed it under the Old Regulations.

Issue 3: Applicability of the Central Board of Excise and Customs' Circular
The petitioner claimed that the clarification issued by the Central Board of Excise and Customs (Board) vide Circular No. 42/2004-Cus., dated 10-6-2004, was not applicable to his case because he had already passed the required examination under the Old Regulations. The respondents, however, relied on this circular to support their stance that the petitioner was not entitled to a regular licence without passing the examination under the New Regulations.

Judgment Analysis:

Comparative Study of Regulations:
The court compared the Old and New Regulations, noting that the Old Regulations allowed for a temporary licence without passing an examination, whereas the New Regulations do not provide for a temporary licence and require passing an examination for a regular licence. Regulation 8(5) of the New Regulations, which begins with a non-obstante clause, allows a person holding a temporary licence to pass the examination within two years from the commencement of the New Regulations.

Examination Requirements:
The court highlighted that the examinations under the Old and New Regulations are not identical. The New Regulations include additional topics and enactments, reflecting advancements in Information Technology and Intellectual Property legislation. Therefore, passing the examination under the New Regulations is a condition precedent for obtaining a regular licence.

Court's Conclusion:
The court concluded that the petitioner's claim could not be accepted because passing the examination under Regulation 8 of the New Regulations is mandatory for the grant of a licence under Regulation 9. The New Regulations do not provide for the conversion of a temporary licence into a regular one, unlike the Old Regulations. Consequently, the court cannot direct the respondent to convert the temporary licence into a regular one.

Final Decision:
The writ petition was dismissed, and the court did not find it necessary to address the scope of the Board's circular dated 10-6-2004.

Summary:
The court upheld the rejection of the petitioner's request for conversion of a temporary licence into a regular one under the New Regulations, emphasizing the mandatory requirement of passing the examination under the New Regulations and the absence of provisions for converting a temporary licence into a regular one. The writ petition was dismissed.

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