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2013 (4) TMI 477 - HC - CustomsMaintainability of appeal to CESTAT against an order passed by the Commissioner of Customs under Regulation 21 of the Customs House Agents Licensing Regulations, 2004, prohibiting a Customs House Agent from working in one or more sections of the Customs Station - Held that - Section 146 operates in a field different from Section 129A. Section 146 governs the licencing of CHAs and contemplates the making of regulations governing all aspects of the licensing of CHAs including disciplinary control. Remedies against orders passed in the disciplinary jurisdiction are to be provided in the regulations. The Regulations constitute a self contained code relating to the licensing of CHAs. The Regulations provide for disciplinary control over CHAs and have provided an appellate remedy against orders of revocation or suspension. An order of prohibition under Regulation 21, preventing a CHA from operating within one or more sections of a customs station is not subject to an appeal under the Regulations. The subordinate legislation has considered that such an order does not possess the consequence of either a revocation of a licence or for that matter, the suspension of a licence pending enquiry since such an order prohibits a CHA from operating in one or more sections of a customs station. The wisdom of the delegate of the legislature in not providing an appeal in such a case does not fall for re-evaluation by the Court. It is trite law that there is no inherent right of appeal. An appeal is a creation of a statute or, as in the present case, the creation of a statutory provision (Section 146) read together with the regulations. A CHA is, however, not without remedy against an order of prohibition which is amenable to the jurisdiction of the High Court under Article 226 of the Constitution. For these reasons it is concluded that the Tribunal is justified in holding that an appeal is not maintainable against an order of prohibition under Regulation 21 of the Regulations of 2004.
Issues Involved:
1. Maintainability of appeal against an order passed under Regulation 21 of the Customs House Agents Licensing Regulations, 2004. 2. Validity of Regulation 22(8) of the CHALR, 2004 in relation to the Customs Act, 1962. 3. Validity of Regulation 21 of the CHALR, 2004 in relation to the Customs Act, 1962. Detailed Analysis: Issue 1: Maintainability of Appeal Against an Order Under Regulation 21 The Tribunal held that an appeal is not maintainable against an order passed under Regulation 21 of the Customs House Agents Licensing Regulations, 2004, which prohibits a Customs House Agent from working in one or more sections of the Customs Station. The Appellant argued that under Section 129A of the Customs Act, 1962, an appeal lies to the Tribunal against any decision or order passed by the Commissioner of Customs as an adjudicating authority. The Appellant contended that a prohibitory order under Regulation 21 is an order passed by an adjudicating authority and thus appealable under Section 129A. However, the Tribunal dismissed the appeal, following its earlier decision in Vetri Impex Vs. Commissioner of Customs. Issue 2: Validity of Regulation 22(8) of the CHALR, 2004 The Appellant questioned whether Regulation 22(8) of the CHALR, 2004 is ultra vires the Customs Act, 1962, arguing that it takes away the substantive right of appeal to the CESTAT as provided under Section 129A of the Customs Act. The Court examined Section 146 of the Customs Act, which mandates licensing for Customs House Agents and empowers the Board to frame regulations, including those governing appeals against orders of suspension or revocation of a licence. The Court noted that Regulation 22(8) specifically provides for an appeal against orders of suspension or revocation but not against prohibitory orders under Regulation 21. The Court found no inconsistency between Section 129A and Section 146, concluding that the Regulations constitute a self-contained code for licensing and disciplinary control over Customs House Agents. Issue 3: Validity of Regulation 21 of the CHALR, 2004 The Appellant also questioned whether Regulation 21 is ultra vires the Customs Act, 1962. Regulation 21 allows the Commissioner of Customs to prohibit a Customs House Agent from working in one or more sections of a Customs Station if the agent fails to fulfill obligations under Regulation 13. The Court held that Regulation 21 does not constitute a revocation or suspension of a licence but merely a prohibition from working in certain sections. The Court emphasized that the wisdom of the legislature in not providing an appeal against such prohibitory orders does not fall for re-evaluation by the Court. The Court concluded that there is no inherent right of appeal and that such a right must be created by statute or regulation. Conclusion: The Court affirmed that an appeal is not maintainable against an order of prohibition under Regulation 21 of the CHALR, 2004. It answered Question (a) in the affirmative, and Questions (b) and (c) in the negative, thereby upholding the validity of Regulations 21 and 22(8) of the CHALR, 2004. The appeal was disposed of with no order as to costs.
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