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TMI Blog2013 (4) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 21; (b) Whether Regulation 22(8) of the CHALR, 2004 is ultra vires the provisions of the Customs Act, 1962 inasmuch as the same takes away the substantive right of Appeal to the CESTAT as provided under Section 129A of the Customs Act, 1962; (c) Whether Regulation 21 of the CHALR, 2004 is ultra vires the provisions of the Customs Act, 1962." 3. The appeal is admitted on the aforesaid questions and is taken up for hearing and final disposal, at this stage by consent. 4. The Appellant was licenced as a Customs House Agent (CHA) by the Commissioner of Customs, Pune on 8 October 1998 under the erstwhile Customs House Agents Licensing Regulation, 1984. On the basis of the licence, the Appellant has been permitted by the Respondent to transact business at the Mumbai Customs House in pursuance of a licence dated 28 September 1999. The licence has been renewed from time to time. On 12 September 2012, the Respondent, in exercise of the power conferred by Regulation 21 of the Customs House Agents Licencing Regulations, 2004, passed an order, prohibiting the Appellant from transacting CHA related business in Zones I, II and III of the Mumbai Customs Station with immediate effect and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l against a decision or order passed by the Commissioner of Customs as an adjudicating authority; (ii) The expression "adjudicating authority" has been defined by Section 2(1) to mean any authority competent to pass any order or decision under the Act; (iii) A prohibitory order passed by the Commissioner of Customs under the Regulations of 2004 is an order passed under the Act as an adjudicating authority; (iv) Hence, an appeal would lie under Section 129A and though Regulation 22(8) prescribes an appeal only against an order of suspension or revocation of a licence under Regulation 20 or Regulation 22(7), an appeal against a prohibitory order under Regulation 21 would be maintainable under Section 129A(1)(a). 7. On the other hand, Counsel appearing on behalf of the Revenue submits that (i) Section 146 of the Customs Act, 1962 mandates the holding of a licence in order to carry on business as an agent at any Customs Station relating to the entry or departure of a conveyance or the import or export of goods; (ii) Sub-section (2) of Section 146 is a specific provision under which regulations can be made to give effect to the provisions of the Section including in the matter of appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efatory part of sub-section (2) of Section 146 is that the Board has power to make regulations for the purpose of carrying out the provisions of the section. The regulations which are framed under Section 146 have to be laid before Parliament under Section 159 and in the event the Parliament determines that any modification is necessary or that the regulations should not be made, the regulations shall then take effect with such modification or be of no effect. 10. In exercise of the power conferred by Section 146(2), the CHA Licensing Regulations came to be framed in 2004 instead and in place of the earlier Regulations of 1984. Regulation 3 requires all Customs House Agents to be licensed. Regulation 4 provides for invitation of applications by the Commissioner of Customs and Regulation 5 for applications for a licence. Regulation 6 stipulates conditions which are required to be fulfilled by an applicant. Regulation 7 provides for a scrutiny of applications. Under Regulation 8 provision has been made for conducting examinations, both written and oral for that purpose. The regulation provides the syllabus for and the scope and ambit of the examination. Regulation 9 provides for the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the case may be, within fifteen days from the date of hearing granted to the Customs House Agent." Regulation 20(1) provides for revocation of the licence of an agent or of the security essentially for a breach of a condition of the bond, for failure of compliance of the provisions of the regulations and for misconduct. Under sub-regulation (2) of Regulation 20, a power of suspension is conferred where the Commissioner of Customs considers it appropriate to take immediate action. Regulation 21 provides for a prohibition in the following terms: "REGULATION 21. Prohibition. - Notwithstanding anything contained in regulation 22, the Commissioner of Customs may prohibit any Customs House Agent from working in one or more sections of the Customs Station, if he is satisfied that such Customs House Agent has not fulfilled his obligations as laid down under regulation 13 in relation to work in that section or sections." Regulation 21 is prefaced with a non-obstante clause. Under the regulation, a CHA can be prohibited by the Commissioner of Customs from working in one or more sections of a Customs Station if he is satisfied that the agent has not fulfilled the obligations which have been ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ulation 21 under Section 129A of the Customs Act, 1962. It is this aspect of the matter that would warrant consideration. 15. Section 129A provides an appeal to the Tribunal by a person aggrieved by orders of the nature provided in clauses (a) to (c ). Clause (a) is a decision or order passed by the Commissioner of Customs as an adjudicating authority. The Appellant relied upon the definition of the expression "adjudicating authority" in Section 2 as meaning any authority competent to pass an order or decision under the Act. A decision taken by an authority under subordinate legislation is as a matter of statutory interpretation, regarded as a decision taken under the Act. This principle has been enunciated in the judgment of the Supreme Court in Indramani Pyarelal Gupta vs. W.R. Natu. (1963) 1 SCR 721 at para 15 This, however, would not be dispositive of the issue which arises in this case because essentially what the Court has to consider is whether the general appellate provisions that are contained in Section 129A would apply to action which is initiated against a CHA under the Regulations of 2004. Section 146 provides for the licensing of an agent for carrying on business wit ..... 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