2003 (9) TMI 92 - HC - Customs

Summary

Issues Involved:
1. Eligibility criteria for Customs House Agent's Licence.
2. Interpretation of Regulation 6(a) of the Customs House Agents Licensing Regulations.
3. Validity of Regulation 6(a) under the Constitution.
4. Whether the petitioner's application was rightfully rejected based on the qualifications of the employees.

Issue-wise Detailed Analysis:

1. Eligibility Criteria for Customs House Agent's Licence:
The petitioner, a sole proprietor, applied for a Customs House Agent's Licence, which was rejected because he was not a G Card holder, and his employees, though G Card holders, were not graduates. The rejection was based on Regulation 6(a), which requires the applicant to be a graduate and possess a permanent pass in Form G with at least three years of experience.

2. Interpretation of Regulation 6(a) of the Customs House Agents Licensing Regulations:
The court examined Regulation 6(a) in conjunction with Regulation 5 and other relevant regulations. It noted that an application for a licence can be made by an individual, firm, or company. When the applicant is a firm or company, it is not necessary for all partners or directors to be graduates or possess a G Card; it suffices if the employee authorized to clear goods through customs meets these criteria. The court clarified that the same principle applies to individual proprietors, meaning it is not mandatory for the proprietor himself to have a G Card if his employees do.

3. Validity of Regulation 6(a) under the Constitution:
The petitioner challenged Regulation 6(a) as ultra vires and unconstitutional. However, the court referenced the Supreme Court's decision upholding Regulation 8, implying that Regulation 6 is also valid. The court did not find Regulation 6(a) to be unconstitutional, thus dismissing this aspect of the petitioner's challenge.

4. Whether the Petitioner's Application was Rightfully Rejected Based on the Qualifications of the Employees:
The court scrutinized the relevant regulations and concluded that the rejection of the petitioner's application was based on a misinterpretation of Regulation 6(a). It held that the requirement for a G Card and graduation applies to the person actually engaged in customs clearance, not necessarily the proprietor. Since the petitioner had employed three G Card holders, the application should not have been rejected on the grounds that the petitioner himself did not possess a G Card.

Judgment:
The court quashed the orders passed by the respondents and directed them to reconsider the issuance of a temporary licence to the petitioner. It emphasized that if the petitioner employs persons with a G Card, the temporary licence cannot be refused merely because the petitioner does not possess a G Card. The writ petitions were allowed to the extent indicated, and the alternative prayer for invalidating Regulation 6 was deemed unnecessary. No costs were awarded, and the connected WPMP was closed.