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TMI Blog2012 (10) TMI 638X X X X Extracts X X X X X X X X Extracts X X X X ..... r.Pallav Shishodia , Sr.Adv. Mr.V. Shekhar , Sr. Adv . Mr. Piyush Kumar, Adv. Mr. Abhinav Jain, Adv. Ms. Abha R. Sharma, Adv. In SLP (C)7802 /10 Mr. Ranjan Kumar, Adv. Respondent Rep. by: Mr. R P Bhatt, Sr.Adv. Mr.K.Swami, Adv. Mr. A.K.Sharma, Adv. Mr. B. Krishna Prasad, A.O.R JUDGEMENT Whether the appellants, who successfully cleared the examinations held under the Customs House Agents Licensing Regulations, 1984 (for short, 'the 1984 Regulations') are entitled to get regular licences to work as Custom House Agents is the question which arises for consideration in these appeals filed against the judgment of the Division Bench of the Delhi High Court which allowed the appeal filed by respondent No.1 and modified the direction given by the learned Single Judge for grant of licences to the appellants. The appellants were initially employed by the Custom House Agents, who were having regular licences. They were granted G-Cards under Clause 20(6) of the 1984 Regulations. They qualified the examinations conducted by the competent authority between 1995 and 2003 under Clause 9 of the 1984 Regulations. In response to Public Notice No. 25/2003 dated 20.06.2003 issued by the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ossesses a permanent pass in Form 'G' (prescribed under Regulation 20) and has the experience of Customs clearance work for a period of not less than three years in the capacity of such a pass holder (attach documentary proof), and (iii) the applicant has financial viability supported by a certificate issued by a Scheduled Bank evidencing possession of assets of the value of Rs. 50,000/-." However, before the process for grant of licences could be completed, the Government of India, Ministry of Finance issued letter dated 8.12.2003 to all the Chief Commissioners of Customs and other authorities to keep the process of fresh recruitment of Custom House Agents in abeyance because the Central Board for Excise and Customs (for short, 'the Board') had initiated the process for amendment of the 1984 Regulations in the light of the recommendations made by the High-powered Committee on Reduction of Transaction Costs of Indian Exports and the Kelker Committee on Indirect Taxes. After three and a half months, the Board framed new regulations titled the Customs House Agents Licensing Regulations, 2004 (for short, 'the 2004 Regulations'), which were notified on 23.02.2004. The Commissione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n at Annexure-I enclosed. 3. These may kindly be brought to the notice of all concerned through appropriate public notices. 4. Hindi version will follow. (V. Kezo ) Under Secretary to the Government of India Tel. No.23094610 Annexure-I Clarifications on Chalr 2004: Sl.No. Issue raised Comments 1. Regulation 8 Regulation 8 passed persons are eligible as applicants for the licence. Can the applicant be a Regulation 8 passed person from a different employees to appear for the examination referred to in sub-regulation (1). Can such authorised persons appear for the exam from the parent commissionerate only [place of grant of licence under regulation 9(1)] or even from a place where he is authorized to transact business under regulation 9(2)? No, because the exam is to be taken only in respect of persons who have applied after the notice is published by the Commissioner of Customs for work within his jurisdiction under regulation 4. 6 (b) Can the provisions of CHALR 1984 relating to licence holders, regulation 9 qualified persons, 'H' and 'G' card holders be treated at par with holders of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovisions of the 2004 Regulations. During the pendency of the writ petition the Commissioner issued letter dated 03.03.2005 and declared that 563 applications received pursuant to Public Notice No.25 /2003 cannot be processed after enforcement of the 2004 Regulations and the applicants are free to apply for grant of licences under the new regulations. That letter reads as under: "Public Notice No. 06/2005 Dated: 24 February, 2005 Subject: Invitation of applications for grant of temporary Custom House Agents under CHA Licensing Regulations, 1984, C/Reg. Attention of the trade and all public is invited to Public Notice No.25 /2003 dated 20.06.2003, whereunder applications were invited from the eligible candidates for grant of temporary Custom House Agents licenses under the Custom House Agents Licensing Regulation 1984. Pursuant to the issuance of the above stated Public Notice, 563 applications were received for grant of temporary Custom House Agents Licenses under Regulation 4 of the Custom House Agents Licensing Regulations, 1984. The applications called and received under Public Notice No.25 /2003 were ordered to be kept pending and not to be processed further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o sets of regulations and held that failure of the concerned authorities to process the applications received pursuant to Public Notice dated 20.06.2003 cannot be made a ground to deprive the appellants of their right to get licences merely because in the meanwhile the Board framed the 2004 Regulations. The learned Single Judge further held that in view of the prefatory statement contained in the 2004 Regulations, the rights of those who had qualified the xamination held under the 1984 Regulations are saved and they are entitled to get licences subject to fulfillment of other conditions. The learned Single Judge accordingly directed that the appellants be granted licences under the 2004 Regulations by treating them to have cleared the examinations held under Clause 8 of those regulations, subject to fulfillment of the conditions specified in Clauses 6 and 9 thereof. In compliance of the order of the learned Single Judge, the Commissioner issued Notice Nos.54 of 2005 dated 17.10.2005 and 56 of 2005 dated 16.11.2005, entertained the applications filed by the appellants and granted licences to all those who satisfied the conditions prescribed under the 2004 Regulations. After abou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause this is their best case. The direction thus to the appellants ought to be to process the case of the respondents for grant of licence under the provisions of the 1984 Regulations and such of the persons who are found eligible be issued the licence under those Regulations. This would imply that those respondents would then be entitled to a continuous licence as per provisions of 2004 Regulations. However, the other set of respondents who could not have been granted the licence under the 1984 Regulations on account of vacancies as existed till 2004 Regulations were promulgated or any other parameter would have to be governed by the 2004 Regulations. The directions of the learned Single Judge stand modified to that extent." We have heard learned counsel for the parties. Section 146(1) of the Customs Act, 1962 declares that no person shall carry on business as an agent relating to the entry or departure of a conveyance or the import or export of goods at any customs station unless such person holds a licence granted purpose in accordance with the regulations. Section 146(2) empowers the Board to make regulations for the purpose of carrying out the provisions of that section inc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued by a Scheduled Bank or such other proof acceptable to the Commissioner evidencing possession of assets of the value of not less than Rs.1 lakh in the case of applicants for the grant of licence in respect of any one of the Customs Stations at Bombay, Calcutta, Madras, Cochin, Kandla , Goa, Mangalore, Tuticorin or Visakhapatnam and not less than Rs.50,000 /- in the case of each of the other Customs Station, situated at places other than those specified above: Provided that in cases where a Commissioner's jurisdiction extends to more than one Customs Station, the Commissioner may issue one licence for all the Stations or more that one such Station to be specified in the licence, waiving the need for separate compliance of the provisions of clauses (a) and (b) above for such additional Customs Stations. The Commissioner may also waive the need for separate compliance of the requirement of Regulation 11 in such cases: Provided further that in places where there is more than one Commissioner exercising jurisdiction over different Customs Stations and Custom House Agents licensed under the Custom House Agents Licensing Regulation 8 from the Commissioner, other that the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e shall get precedence. 9. Examination of the applicant 1. The holder of a temporary licence in the case of an individual and the person or persons who will be actually engaged in the work of clearance of goods through customs on behalf of the firm or company holding a temporary licence, as the case may be, shall be required to qualify in examination, at the earliest opportunity. Such person or persons shall be eligible to appear in the examination as soon as a temporary licence is granted and shall be permitted to avail of three chances within a period of 2 years from the date of issue of the temporary licence of payment of prescribed examination fee of ( Rs.500 /-) for each examination. 2. The examination referred to in sub-regulation (1) shall include a written and oral examination and will be conducted twice every year. Each applicant would be permitted to avail of a maximum of three chances to qualify in the said examination but all such chances should be availed of within a maximum period of 2 years from the date of grant of temporary licence. ( Explanation : A person who qualifies in the written examination, but fails in the oral test linked to it, shall be treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regulation (1). 10. Grant of regular licence The Commissioner shall, on receipt of an application in Form C (See Form No.49 in Part 5), grant a regular licence in Form D (See Form 50 in Part 5) on payment of a fee of ( Rs.5000 /-) to such holder of a temporary licence who qualifies in an examination referred to in Regulation 9 and whose performance is found to be satisfactory with reference, inter alia, to the following: - a. quantity or value of cargo cleared by such licensee conforming to norms as may be prescribed by the Commissioner; b. absence of instances of delay either in the clearance of goods or in the complaints of misconduct including non-compliance of any of the obligations specified in Regulation 14. 2. The Customs House Agents who are granted regular licencee under Regulation 10, shall be eligible to work in all Customs Stations subject to fulfillment of the following requirements: a. the licensee shall make an application to the Commissioner of the concerned Customs Station where he intends to transact business for purposes of registering himself and his authorised staff; b. he fulfils the conditions stipulated in clause (b) of Regulation 6 relating to f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f a notice affixed on the notice board of each Customs Station as well as through publication in at least two newspapers having circulation in the area of his jurisdiction, specifying therein the last date of receipt of application. Such application shall be for clearance work within the jurisdiction of the said Commissioner of Customs. 5. Application for licence. - (1) An application for a licence to act as a Customs House Agent in a Customs Station shall be made in Form A and shall, inter alia, contain the name and the address of the person applying; and (2) If the applicant is a firm -- (a) the name and address of every partner of the firm, the firm's name, and (b) the name of the partner or the duly authorised employee, who will actually be engaged in the clearance of goods or conveyances through the customs. (3) If the applicant is a company ? (a) the name of each director, managing director, manager, and (b) the names of director, managing director, manager or the duly authorised employee, who will actually be engaged in the clearance of goods or conveyances through the customs. 6. Conditions to be fulfilled by the applicant. -- The applicant referred to i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f seven years within which he shall pass both the written and oral examinations. No further extension of time shall be granted. (5) Notwithstanding anything contained in sub-regulation (4), any person who holds a temporary licence granted under regulation 8 of the Customs House Agents Licencing Regulations, 1984, shall be allowed to pass the examination within a period of two years from the date of commencement of these regulations. 9. Grant of licence .- - (1) The Commissioner of Customs shall on payment of a fee of Rs. 5,000/- grant a licence in Form B to an applicant who has passed the examination referred to in regulation 8. (2) The Customs House Agents who are granted licences under sub-regulation (1) shall be eligible to work in all Customs Stations within the country subject to intimation in Form C to the Commissioner of Customs of the concerned Customs Station where he intends to transact business. No separate licence shall be required in places where in addition to a Customs House handling imports by sea, there is also an International airport to handle imports by air, even if under the jurisdiction of a different Commissioner of Customs." An analysis of above re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nguage of Clause 4 of the 1984 Regulations and the 2004 Regulations suggest that every year the Commissioner is required to make an assessment of the number of licences proposed to be granted and then invite applications for grant of such licences, Public Notices dated 20.06.2003 and 24.02.2005 do not contain any indication of such an assessment having been made by the Commissioner before inviting applications for grant of licences. Therefore, the Division Bench of the High Court was not justified in introducing the concept of vacancies in what it thought to be the cadre of Custom House Agents and limit the number of licences to be granted to the candidates, who successfully qualified the examinations conducted under the 1984 regulations. The clarification issued by the Board vide Circular dated 10.06.2004 and the decision of the Commissioner to dump 563 applications received pursuant to Public Notice dated 20.06.2003 are contrary to the language of proviso to Clause 8 of the 2004 Regulations and the prefatory statement contained in those regulations and, therefore, the same cannot be relied upon for denying licences to the appellants. The matter deserves to be considered from an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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