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2014 (7) TMI 20 - AT - CustomsRejection of application for change of constitution of the firm proprietorship to private limited company in the CHA licence - application for change was made on 23.02.2011 - proprietor Shri K.J. Bhayani expired on 27.11.2011 - Held that - CHA license No.CHA/JMR/R/ 20/2003 was issued in the name of Shri.K.J. Bhayani and the said license was renewed from time to time and was valid till 28.09.2016. It is seen from the records that the license holder Shri K.J. Bhayani had on 23.02.2011 applied for change in constitution specifically on the ground that he was not maintaining good health due to old age. We also find that 26.02.2011, in furtherance of letter dt.23.02.2011 of Shri K.J. Bhayani, the appellant M/s Ramaans Total Logistics Pvt.Ltd. sought permission from the CC (Prev.) Jamnagar for change in constitution and as also sought permission to continue the licenses till the permission is granted for change in the constitution. On 30.09.2011, the appellant again, on some oral queries, enclosed remaining documents and filed the same in the office of CC (Prev.) Jamnagar. In response to such letter, the authorities vide letter dt.05.10.2011 directed the appellant to file further documents authenticated by appellant, which was done on 12.10.2011. Subsequently, by further correspondences, the appellant on 11.11.2011 complied with all the requirements. We also find that despite so many correspondences with the authorities, the authorities did not change the constitution in the CHA license and vide letter dt.16.01.2012, the office of CC (Prev.) Jamnagar informed Shri K.J. Bhayani to continue the operations in the name of Shri K.J. Bhayani operated by M/s Ramaans Total Logistics Pvt.Ltd till 16.04.2012 and directed the appellant to obtain fresh CHA licenses in the name of the new company. Keeping aside all the semanties which have been taken up by both sides on factual matrix, the office of the CC (Prev.) Jamnagar, had, in fact, was considering positively change in the constitution of CHA license No.CHA/JMR/R/20/2003. Due to delay in the decision making and sad demise of proprietor on 27.11.2011, the Revenue authorities cannot hold that change in constitution would not be possible to be done so, as the issue will now fall under the provisions of Regulation 16(2) of CHALR. In our considered view, this approach of the authorities due to delay in ordering change would be defeating the very purpose of the CHALR where provisions for the change in the constitution of the CHA license were mandated - change in the constitution of the license should not have been denied to the appellant by the authorities - Decided in favour of appellants.
Issues Involved:
1. Whether the order rejecting the change of constitution of the firm from proprietorship to private limited company in the CHA license can be appealed before the Tribunal. 2. Whether the order passed by the Commissioner of Customs (Preventive) Jamnagar is an administrative or quasi-judicial order. 3. Applicability of Customs House Agents Licensing Regulations (CHALR) and Customs Brokers Licensing Regulations (CBLR) in the context of the appeal. 4. Validity of the rejection of the application for change in constitution due to the death of the original license holder. Issue-wise Detailed Analysis: 1. Appealability of the Order: The primary issue was whether the order dated 28.02.2014, rejecting the change in constitution of the CHA license, can be appealed before the Tribunal. The Revenue argued that the order was administrative and not appealable. However, the Tribunal found that the order recorded the facts, defense, and findings, indicating it was quasi-judicial. The Tribunal referenced the Supreme Court's judgment in the case of Automotive Tyre Manufacturers Association, which established that an order containing detailed allegations, defense, and findings is quasi-judicial. Therefore, the Tribunal concluded that the order could be appealed. 2. Nature of the Order: The Tribunal examined whether the order by CC (Prev.) Jamnagar was administrative or quasi-judicial. The Tribunal determined that the order was quasi-judicial as it involved detailed proceedings, including the recording of facts, defense, and findings. This conclusion was supported by the format and content of the order, aligning with the Supreme Court's interpretation in the Automotive Tyre Manufacturers Association case. 3. Applicability of CHALR and CBLR: The Tribunal addressed the applicability of CHALR and CBLR. The Revenue contended that the CHALR did not provide for an appeal against an order rejecting a change in constitution, and the CBLR, which superseded CHALR, was not applicable retroactively. The Tribunal noted that the order was passed in February 2014, when CBLR was in effect. Despite the transition from CHALR to CBLR, the Tribunal held that the appeal mechanism provided under CBLR applied, allowing the appeal to be heard by the Tribunal. 4. Rejection of Application Due to Death of License Holder: The Tribunal reviewed the factual matrix, noting that the application for change in constitution was filed before the death of the original license holder, Shri K.J. Bhayani. The Tribunal found that the appellant diligently followed up with the authorities, who delayed the decision. The Tribunal criticized the Revenue's approach of denying the change due to the proprietor's death, stating that this defeated the purpose of CHALR provisions allowing for changes in constitution. The Tribunal held that the authorities should have processed the change in a timely manner, and the rejection was unjustified. Conclusion: The Tribunal set aside the impugned order and directed the Commissioner of Customs (Preventive) Jamnagar to change the constitution of the CHA license from proprietorship to the private limited company as requested by the appellant. The appeal was disposed of accordingly. Final Pronouncement: The judgment was pronounced in court on 19.06.2014.
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