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TMI Blog2014 (12) TMI 987X X X X Extracts X X X X X X X X Extracts X X X X ..... rovisions of Customs Act, 1962 are applicable in similar manner as is applicable for clearance from other modes. The object underlying the requirement of passing the examination under Regulations 8/19 of CHALR, 2004 (now Regulation 6/17 of CBLR, 2013) is to ensure that such person has the basic level of competency and knowledge. Hence, when the Courier Regulations, 1998 as amended, stipulates that such persons filing declarations for clearance of imported and export goods under the Courier mode must have qualified at the examination as mandated under Regulation 8/19 of CHALR 2004 (now Regulation 6/17 of CBLR 2013), there is nothing arbitrary in imposing such a requirement. The requirement has a reasonable nexus with the object which is sought to be achieved viz. to ensure that the Authorized Couriers/ employees fulfill the requirement of competency, knowledge and skills. Even otherwise, the requirement under the amended Courier Regulations, 1998, that the Authorized Courier shall file declarations for clearance of imported or export goods through a person who has passed the said examination and who is duly authorized under section 146 of the Customs Act, is entirely a matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it self contained and free from the provisions of CHALR 2004 or CBLR 2013 or any other set of Regulations not connected with Courier Regulations. c) that a writ, directions or order in the nature of mandamus be issued to Respondent No. 7 directing him to design and conduct tests and examinations which are appropriate for the testing the adequacy of knowledge and competence of courier company employees of Customs Act, Rules and Regulations and Allied Acts as would be deemed necessary for clearance of consignments through customs in the courier mode. 2. The Petitioner is an Association claiming to have 37 registered members engaged in the import and export of documents, samples and consignments through Chhatrapati Shivaji International Airport and who are Authorized Couriers under the provisions of Courier Import and Export (Clearance) Regulations, 1998 (hereinafter referred to as the Courier Regulations, 1998). It is required to be noted that there is a difference in the Regulations between engaging in transportation of imported or export goods and their clearance. For registration as transporter of imported and export goods the person has to approach the Commissioner of Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of business of the members of the Petitioner. (II) The Courier Regulations 1998 (as amended in 2010) are deficient to the extent that the said Regulations do not provide for the authorized Courier company employees to appear for the examination which the authorized signatory is expected to pass. Only one opportunity has been provided to the employees of the Courier companies to appear for the examination referred to in Regulation 19 of the CHALR 2004 in terms of CBEC Circulars. In contrast the CHA employees are granted four attempts to clear the same examination. (III) The employees of the Courier companies have adequate knowledge of the Customs Rules and Regulations necessary for the clearance of courier consignments through Customs and have been engaged in Customs clearance of courier consignments for several years. The only aspect is that they have not passed the examination referred to in the Courier Regulations which are actually meant for CHA employees. (IV) The Courier Regulations 1998 are not self contained and have to depend on the provisions of CHALR 2004 which have since been superseded by CBLR 2013. The examination that the authorized signatories of the courie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oyees of the Authorized Couriers having adequate knowledge of Customs laws and allied Acts would be able to meet the obligations as stipulated under Regulation 13 of the Courier Regulations, 1998. Accordingly, the Circular No.21/2011 dated 18-4-2011 was issued in order to give an opportunity to Authorized Couriers or their employees to qualify the examination referred to in Regulations 8 or 19 of the CHALR, 2004, and to enable them to appear in the examination conducted by the Director General of Inspection or the Commissioner of Customs. 6. The Affidavit-in-Reply further states that the time limit for appearing in examination for Authorized Couriers/employees was extended upto 31 December 2011 and subsequently extended upto 30 June 2012, as one time measure and it was expected that this time limit would meet the requirement of Authorized Couriers or its employees to fulfill the obligations as stipulated in Regulation 13 of the Courier Regulations, 1998, as amended. The Central Board of Excise and Customs has provided an opportunity to Authorized Couriers/their employees as a trade facilitation measure with a view that existing Authorized Couriers/employees may also file the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent Regulations, 2010. Under Regulation 13(h), Authorized Couriers are required to file declarations for clearance of imported or export goods through a person who has passed the examination referred to in Regulation 8/19 of the CHALR, 2004 (now corresponding to Regulation 6/17 respectively of the CBLR, 2013) and who are duly authorized under section 146 of the Customs Act, 1962. Section 146(1) of the Customs Act 1962 provides that no person shall carry on business as an agent relating to departure of a conveyance or the import or export of goods at any Customs Station unless such person holds a licence granted in this behalf in accordance with the Regulations. Under the CHALR, 2004, which Regulations are framed in exercise of powers under sub-section 2 of Section 146 of the Customs Act 1962, a Customs House Agent (CHA) has been defined to mean a person licensed under these Regulations to act as agent for the transaction of any business relating to the entry or departure of conveyances or the import or export of goods at any Customs Station. Under Regulation 8 of CHALR 2004 (corresponding to Regulation 6 of CBLR, 2013) an applicant, who satisfies the requirements of Regulations 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scertain the adequacy of knowledge of such person regarding the provisions of the Act subject to which goods and baggage are cleared through customs. .. (6) The Deputy Commissioner of Customs or Assistant Commissioner of Customs, as the case may be, shall issue a photo-identity card to every person employed by a Customs House Agent, (i) in Form F in case he has passed the examination referred to in regulation 8; (ii) in Form G, in case he has passed the examination referred to in sub-regulation 3; (iii) in Form H, in case he has not passed the examination referred to in sub-regulation (3); and every such person shall, at all times when he transacts the work at the Customs Station, carry such card with him and produce it for inspection on demand by any officer of the Customs Station. 9. The rationale behind the requirement under the Courier Regulations, 1998, as amended, of making/filing declarations by a person who has qualified the examination referred to under Regulations 8/19 of CHALR, 2004 (corresponding to Regulation 6/17 of CBLR, 2013) is that the said persons have adequate knowledge of overall customs clearance process. The syllabus of the examination co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ployees, these apprehensions have been allayed in the Affidavitin- Reply filed on behalf of the Respondents. It is specifically stated in the Reply that the declaration referred to in Regulation 8 of the Courier Regulations,1998 for clearance of imported or export goods does not mandate filing of declaration by the Authorized Courier or his employee only and there is option given to the Authorized Courier either to file declaration through a person in case he is qualified under CHALR, 2004 or he can get the documents filed through CHA. In other words, the Authorized Courier may utilize services of a person who has qualified the examination under Regulations 8/19 of the CHALR, 2004, in case he or his employee has not qualified the examination for filing declarations under the Courier Regulations, 1998. In the Reply, it has been also averred that there are about 52 Authorized Couriers companies at Courier Terminal Sahar, Mumbai and almost all of the above have hired the services of persons who have passed the examination referred to in Regulation 6/17 of the CBLR, 2013 (erstwhile Regulation 8/19 of the CHALR, 2004) and clearance of courier consignments is being handled smoothly and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot be given. 2. We have therefore requested Mr.Jetly to take limited instructions from the Respondents and particularly as to whether they are ready and willing to accommodate the Petitioner by giving an opportunity to them to appear for the examination in terms of Regulation 5 of the regulations, namely, Courier Imports and Exports (Clearance) Regulations, 1998 and as amended by the Courier Imports and Exports (Clearance) Amendment Regulations, 2010. 3. To enable Mr.Jetly to take these instructions stand over to 29th September, 2014. 13. From the above, it would be evident that the only grievance of the Petitioner which really remained was as regards opportunity to the members of the Petitioner and their employees to appear for the examination as contemplated under Regulation 8/19 of the CHALR, 2004 (now Regulation 6/17 of CBLR, 2013). In paras 8,10,16 17 of the Affidavit-in-Reply on behalf of the Respondent, it is stated as follows: 8. With reference to para 7 of the Petition, I say that as per Circular No.21/2011 dated 18-4-2011 issued by the Central Board of Excise and Customs examination was conducted on 25-03-2012. I say that a total of 2185 candidates appeare ..... X X X X Extracts X X X X X X X X Extracts X X X X
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