2014 (4) TMI 197 - HC - Customs

Granting of CHA Licence - Regulations under Customs House Agents Licensing Regulations, 1984 & 2004 u/s 146(2) of the Customs Act - Held that - Judgment in SUNIL KOHLI & ORS Versus UNION OF INDIA & ORS 2012 (10) TMI 638 - SUPREME COURT followed -The Regulations framed by the Board u/s 146(2) of the Customs Act are in the nature of delegated legislation - The language of that section and other provisions of the Customs Act do not indicate that the Board is empowered to make Regulations with retrospective effect - Thus, the 2004 Regulations would operate prospectively and would not in any manner affect the eligibility and entitlement of those who had qualified the examination held under the 1984 Regulations for grant of licences to act as CHA - The saving clause contained in the opening paragraph of the 2004 Regulations unmistakeably show that while enacting the new Regulations, the Board did not want to adversely impact the right of those who had qualified the examination held under the 1984 Regulations because the nature of the examinations envisaged under the two sets of Regulations is substantially similar - Considering the Supreme Court decision in Sunil Kohli (supra), it is not possible for the appellants to refuse to give licence to the writ petitioner-respondent no.1 on the specific plea that he is qualified under the Regulations 1984 and not under the Regulations 2004 - No substance in appeal and thus dismissed Decided against appellant.

Summary

Issues:
Challenge to judgment and order dated 9th October, 2012 - Condonation of delay - License application disposal - Appeal by Commissioner of Customs - Qualification under 1984 Regulations - Right to practice nationwide - Impact of 2004 Regulations - Compliance with Supreme Court ruling - Refusal to grant license - Application for stay.

Analysis:

The High Court of Calcutta heard the advocates for both parties and granted condonation of delay in the application. The appeal challenged a judgment and order from 2012, where the impugned orders were set aside and quashed, directing the disposal of the license application within 60 days. The appeal was filed by the Commissioner of Customs, disputing the qualification of the writ petitioner under the 1984 Regulations, despite applying under the Calcutta Commissionerate due to lack of qualification under the 2004 Regulations.

The appellant's advocate argued that the writ petitioner did not possess the necessary qualification under the 2004 Regulations, having obtained qualification under the 1984 Regulations in 1991. On the other hand, the respondent's advocate contended that the petitioner had the required qualification and cited the Supreme Court's ruling in Sunil Kohli v. Union of India, emphasizing that the 2004 Regulations should not impact the entitlement of those qualified under the 1984 Regulations to act as Customs House Agents nationwide.

The respondent's advocate highlighted that the Board's intention in framing the 2004 Regulations was not to affect the rights of those qualified under the 1984 Regulations, as clarified by the Supreme Court. The Court, in line with the Supreme Court's decision, held that the appellants could not deny the writ petitioner a license based on the argument of qualification under the 1984 Regulations rather than the 2004 Regulations, ultimately dismissing the appeal for lack of substance.

In conclusion, the Court found the appeal devoid of merit and dismissed it accordingly. The application for stay was also disposed of in light of the judgment.