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TMI Blog2012 (6) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11 does not so provide. Whether CHA may avail the remedy against the order of rejection of application for renewal of license under sub-regulation (5) of Regulation (9) of the said Regulation – Held that:- It is seen that when a fresh application for issuance of license is filed and the same stands rejected by the Commissioner, there is a specific provision for filing an appeal before the Chief Commissioner of Customs, in terms of clause 5 of Regulation 9 - The CHA license holder is at liberty to file an application before the Commissioner before the expiry of validity period for renewal of the license for a further period of ten years from the date of expiry- discrimination cannot be made on the ground that the application was for renewal of license and not for grant of fresh license. - Customs Appeal No.194 of 2008 - - - Dated:- 10-4-2012 - Ms. Archana Wadhwa, Mr. D.N.Panda, Mr. Rakesh Kumar, JJ. Present for the Appellants Shri Krishna Kant, Adv. Present for Respondent Shri B.K.Singh, JCDR, Shri S.K.Panda, JCDR and Shri R.K.Varma, DR Per Ms. Archana Wadhwa: The issues which stands referred to the Larger Bench are as follows :- (a) Whether the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... taken away by referring to the regulations wherein no specific provision stand provided for filing the appeal. As such he submits that the Tribunal s decision in the case of Sri Shipping Services as also in the case of Arun Kumar Sikka holding that the appeal against rejection of renewal of CHA license would lie to the Tribunal, should be adopted as the correct declaration of law. 4. Countering the above argument, ld. JCDR appearing for the Revenue submits that no doubt the regulations are sub-serviant to the Customs Act but the provisions of section 129(A) to the Customs Act are required to be examined. He submits that clause-a of the said section provides for filing the appeal against the order passed by the Commissioner as an adjudicating authority. The said expression is defined u/s 2(1) of the Customs Act, 1962 as adjudicating authority means any authority competent to pass any order or a decision under this Act, but does not include Board, Commissioner(Appeals) or the Appellate Tribunal. Elaborating his argument, he submits adjudication means make a formal judgement or a decision about a problem or disputed matter . As such an order amounts to adjudication if it decides s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be observed here that any order revoking or suspending the licence is likely to visit the person with evil consequence; it is also likely to cast some stigma on him, and therefore, the framer of the Regulations deemed it proper to make provision for regular appeal against such an order. However, as regards rejection of licence, including rejection of renewal application, no person can claim any vested right of appointment as CHA; he can only claim right of consideration. There was, therefore, an apparent justification to provide for a lesser remedy by way of representation against any order refusing licence or rejecting the renewal application before the Chief Commissioner. May be, as seen above, the 2004 Regulations provide for regular appeal against such orders, but that is a policy matter. Legally treating orders of suspension/ revocation of licence and non-renewal of licence on different footings was sustainable. As observed above, right of appeal is a creature of statute and there being no provision under which a CHA could file appeal before this Tribunal against order rejecting the renewal application, the appeal cannot be said to be maintainable. 6. At this stage, we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court to exercise its extraordinary jurisdiction in case where an application for renewal is rejected. Similarly, the Hon ble High Court of Calcutta in the case of M.Dutta Agency while dealing with the objection raised by the Revenue that since the order made before the Hon ble High Court was an order rejecting renewal of license, held that since order of the Customs authorities rejecting renewal of license does not come under various clauses of CHA Regulation Act, no appeal lies before the Tribunal for such refusal to renew CHA license. 7. As we find that the issue referred to the Larger Bench stands concluded by the Hon ble High Court of Bombay as also Hon ble High Court of Calcutta in the above referred two decisions, no contra-decision stands shown to us by the appellants, we are bound by the above decisions of the High Courts to say that no appeal lies to Tribunal against the order of Commissioner of Customs rejecting the application for renewal of license under Regulation 11 of the CHA Regulations, 2004. As such the issue referred to the Larger Bench is answered accordingly. 8. The second question referred to the Larger Bench as to whether the Customs House Age ..... X X X X Extracts X X X X X X X X Extracts X X X X
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