2005 (9) TMI 109 - HC - Customs

Summary

Issues Involved:
1. Denial of additional chance to clear Customs House Agents Examination (CHA Examination).
2. Validity of the notice for the examination held on 29-12-2000.
3. Impact of the postponed examination on 28-12-2001.
4. Appellate Authority's competence to extend the statutory period for availing examination chances.

Issue-wise Detailed Analysis:

1. Denial of Additional Chance to Clear CHA Examination:
The petitioner was initially granted a temporary CHA license, which was extended for another year, expiring on 19-11-2002. He was denied a regular license because he failed to pass the CHA Examination within the stipulated period. The petitioner argued that he was entitled to one more chance to clear the examination as he had not availed all three chances within the two-year period specified under Regulation 9 of the Customs House Agents Licensing Regulations, 1984 (Regulations, 1984).

2. Validity of the Notice for the Examination Held on 29-12-2000:
The petitioner claimed he did not receive any notice for the examination held on 29-12-2000, thus he could not appear. The respondents countered that the examination was held after due information to the public and the petitioner should have kept track of it. However, the court found that the respondents failed to disclose the mode and date of the alleged "due information to the public." The court opined that mere offering of an opportunity by holding an examination and giving prior information is not enough to presume that a person had availed himself of the chance. Therefore, the examination on 29-12-2000 could not be counted as one of the three chances.

3. Impact of the Postponed Examination on 28-12-2001:
The examination scheduled for 28-12-2001 at NOIDA was postponed because the question papers were not received. The court held that mere fixation of a date for holding an examination is not sufficient; the actual examination must take place. Since the examination did not occur, it could not be counted as a chance availed by the petitioner.

4. Appellate Authority's Competence to Extend the Statutory Period for Availing Examination Chances:
The Chief Commissioner dismissed the petitioner's appeal on the ground that the three chances had to be availed within two years, which had expired on 19-11-2002. The court, however, found that the two-year limit applies to the original authority (Commissioner of Customs) and not to the Appellate Authority. The court emphasized that the Appellate Authority has the power to grant relief even after the two-year period, to avoid rendering the appellate provision redundant. The court held that the Appellate Authority could allow the petitioner to avail the remaining chance to pass the examination.

Conclusion:
The court set aside the impugned appellate judgment and order dated 11-10-2004 and directed the respondents to permit the petitioner to appear in the ensuing examination to avail his third chance as contemplated under Regulations 8 and 9 of the Regulations, 1984. The writ petition was allowed, and no order as to costs was made.