9911796707
TMI Blog2014 (7) TMI 20X X X X Extracts X X X X X X X X Extracts X X X X ..... imited. It is his submission that during correspondence with Department, proprietor Shri K.J. Bhayani expired on 27.11.2011. It is his submission that the adjudicating authority had in the order held that the appellant has filed/applied for fresh license on 09.04.2012 without revealing the death of the license holder. It is his submission that this finding seems to be inappropriate as the Revenue authorities have themselves directed appellant to file an application in proper format vide letter dt.16.01.2012. He would submit that the adjudicating authority has relied upon the provisions of Customs House Agents Licensing Regulations, 2004 (hereinafter referred to as CHALR) and relying upon the Regulation 15 of CHALR, they rejected the change in the constitution. He would then draw our attention to the judgment of the Hon'ble Supreme Court in the case of M/s Automotive Tyre Manufacturers Association Vs Designation Authority - 2011 (263) ELT 481 (SC) for the proposition that any order passed by the Commissioner of Customs is a quasi-judicial order if it contains the details of the allegations, defense and the findings. He would submit that CC (P) Jamnagar has specifically recorded the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for licenses of CHA and also regulations to be made by the authorities. He would draw our attention to the said Section and submit Section 146 (2) of the Customs Act, 1962 provides that the regulation be made by Government of India, which would 'in particular' include few clauses indicated therein. He would submit that Revenues case is that the regulations only provides for appeal against suspension or revocation of license and the words used 'in particular having interpreted by the Apex Court to hold that the power is confined only to peripheral or procedural matters. He would submit that the impugned order be set aside and authorities be directed to change the constitution of CHA license No.CHA/JMR/R/20/2003 from Proprietor ship to Private Limited Company. 3. Ld.Departmental Representative, on the other hand, would draw our attention to the provisions of Section 146 of Customs Act, 1962. After reading the said Section, he submits that CHALR or CBLR, as the case may be, have been made under the provisions of Section 146 (2). He would submit that the provisions of Section 146 (2) only talk about the making of regulations for filing appeals, if any, against an order of suspension ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le giving the factual position would also submit that the appellant herein had not kept Department informed about the death of the proprietor in respect of said CHA license and filed an application for issuing of license in the name of the new company on 09.04.2012. He would submit that this action of the appellant itself indicates that they were aware of the change in constitution of the license would not permitted after the death of the CHA license holder late Shri K.J. Bhayani. He would submit that the application of the appellant was correctly rejected as they had not apply for the license before the death of the license holder and the license was not issued to them before the death of the license holder. 5. Ld.Counsel, in rejoinder, would submit that earlier CHALR provide for an appeal against the said order before the Chief Commissioner, the power which has been taken away in CBLR, hence even if they approach to Chief Commissioner, it would be hit by limitation as also the provision as CBLR has been issued in supersession of the CHALR. 6. Ld.Departmental Representative, countering this rejoinder, would submit that CBLR is very specific in the preamble and it lays down that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... there is no provision for filing appeal against an order of prohibition. In our considered view, an order of prohibition is totally different and on another footing than the order which has been passed rejecting the change in constitution of CHA license holder, we hold that the ratio as has been decided by the said decision, may be correct in the facts & circumstances of that case, needs to be applied in peculiar circumstances. In the case in hand, we find that the adjudicating authority has passed an order in February 2014 while invoking the provisions of regulation 15 of CHALR which itself, in our view, is incorrect as on the date of the issuing the order, CC (Prev.) Jamnagar would have passed the order under the regulation which are in existence. 9. We now revert to the factual matrix of this case. On perusal of the records, we find that it is undisputed 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. We find that the CHALR had specific provision which enabled the appellant to seek change in constitution of CHA license holder and if it was done so in diligent manner by Revenue authorities, the current situation would not have arisen. Since the impugned order is passed on 28.02.2014, when CBLR was in the statute, we are of the view that the order which has been passed by CC (Prev.) Jamnagar could be challenged before us. In the facts and circumstances of this case, we find that the change in the constitution of the license should not have been denied to the appellant by the aut ..... X X X X Extracts X X X X X X X X Extracts X X X X
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