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TMI Blog2013 (1) TMI 724X X X X Extracts X X X X X X X X Extracts X X X X ..... ve to the satisfaction of the Commissioner of Customs that the applicant or his authorized employee is a graduate from a recognized University and possesses the professional degree as specified in the said regulation, has diploma in customs clearance work from any Institute or University recognized by the Government with working knowledge of computers and customs procedures; or is a graduate having at least 3 years experience in transacting Customs House Agent work as a G Card holder; or a person who has passed the examination referred to in Regulation 8; or is a retired Group ‘A’ officer from the Indian Customs and Central Excise Service having a minimum of ten years experience in Group ‘A’ In view of the judgment of the Hon’ble Supreme Court in Sunil Kohli (2012 (10) TMI 638 - SUPREME COURT), the impugned order cannot be sustained and the same is set aside and quashed. - The respondent shall issue requisite customs house agents licence to the petitioner within two months from the date of communication of this order subject to compliance of the requisite formalities but without insisting on clearance of the examination under Regulation 8 of the CHALR, 2004. - Decided in favour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xporter of any goods shall, unless the contrary is proved, be deemed to have been done with the knowledge and consent of such owner, importer or exporter, so that in any proceedings under this Act, the owner, importer or exporter of the goods shall also be liable as if the thing had been done by himself. (3) When any person is expressly or impliedly authorised by the owner, importer or exporter of any goods to be his agent in respect of such goods for all or any of the purposes of this Act, such person shall, without prejudice to the liability of the owner, importer or exporter of such goods for such purposes : Provided that where any duty is not levied or is short-levied or erroneously refunded on account of any reason other than any wilful act, negligence or default of the agent, such duty shall not be recovered from the agent unless in the opinion of [Assistant Commissioner of Customs or Deputy Commissioner of Customs] the same cannot be recovered from the owner, importer or exporter. 148. Liability of agent appointed by the person in charge of a conveyance. - (1) Where this Act requires anything to be done by the person in charge of a conveyance, it may be done on his ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ized University and is an employee of a licencee and that he possesses a permanent pass in Form G prescribed under regulation 20 and has the experience of work relating to clearance of goods through the Customs, for a period of not less than three years in the capacity of such a pass-holder : Provided that the Commissioner may relax the possession of permanent pass in Form G to one year for reasons to be recorded in writing. (b) . 7. Scrutiny of applications for licence. - On receipt of application under regulation 5 the Commissioner may make enquiries for verification of the particulars set out in the application and also such other enquiries as he may deem necessary including enquiries about the reliability and financial status of the applicant. 8. Grant of Temporary licence. - (1) Any applicant whose application is received within the last date specified in regulation 4 and who satisfies the requirements of Regulation 5 and 6 shall be permitted to operate as Customs House Agent at the Customs Station for which the application is made initially for the period of one year against temporary licence granted by the Commissioner in this regard in Form B : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... English and the local language of the Customs Station : Provided that in the case of persons deputed to work exclusively in the docks, knowledge of English will not be compulsory. Knowledge of Hindi will be considered as an additional or desirable qualification. (5) The holders of a regular licence under Regulation 10 may authorize one of their employees or partners or directors, to appear for the examination referred to in sub-regulation (1), on behalf of such holders of regular licence in addition to the person of their agency who has passed the examination referred to sub-regulation (1). 10. Grant of regular licence. - (1) The Commissioner shall, on receipt of an application in Form C, grant a regular licence in form D on payment of a fee of ₹ 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 confirming to norms as may be prescribed by the Commissioner; (b) absence of instances of delay either in the clearance of goods or in the payment of duty f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at any Customs Station unless such persons holds a licence granted under these regulations. Provided that no licence under these regulations shall be required by :- (a) an importer or exporter transacting any business at a Customs Station solely on his own account, (b) any employee of any person or firm transacting business generally on behalf of such person or firm, and holding an identity card or a temporary pass issued by the Deputy Commissioner of Customs or Assistant Commissioner of Customs, (c) an agent employed for one or more vessels or aircrafts in order solely to enter or clear such vessels or aircrafts for work incidental to his employment as such agent. 4. Invitation of application. - The Commissioner of Customs may invite applications for the grant of such number of licences as assessed by him, to act as Customs House Agent in the month of January every year by means of 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e written as well as oral examination conducted by the Director General of Inspection at specified centers and specified dates, twice every year, for which intimation shall be sent individually in advance before the date of examination. Provided that an applicant who has already passed the examination referred to in Regulation 8 will not be required to appear for any further examination. (2) The applicants declared successful in written examination shall be called for oral examination. (3) . (4) An applicant shall be allowed a maximum period of 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 Licensing Regulations, 1984, shall be allowed to pass the examination within a period of two years from the date of commencement of these regulations. (6) The examination may include questions on the following :- .. (7) The Commissioner of Customs shall also satisfy himself whether the applicant, if he is an individual, po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out giving the petitioner an opportunity of being heard. 10. The short question in this writ application is whether the application of the petitioner No. 1 for license under CHALR 2004 could have been rejected on the ground that the petitioner No. 1 had cleared the examination under Regulation 9 of CHALR 1984 from Mumbai and not from Kolkata. 11. In the unreported judgment dated 5th September, 2006 of this Court in W.P. No. 204 of 2006 [A.P. Clearing Agency Pvt. Ltd. Anr. v. Union of India Ors.] this Court held that a temporary licence holder, who had passed the examination under Regulation 9 of CHALR 1984 was not required to clear an examination under Regulation 8 of the 2004 Regulations for grant of permanent licence. This Court further held that : A comparative reading of Regulation 9(3) of the 1984 Regulations and Regulation 8(6) of the 2004 Regulations show that the syllabus prescribed under the 2004 Regulations is almost identical to the syllabus prescribed under the 1984 Regulations, except for insertion in the 2004 Regulations of Regulation 8(6)(q) extracted hereinbelow : (q) on-line filing of electronic shipping bills or bills of entry and Indian Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns. There is nothing in the 2004 Regulations wherefrom it may be deducted that a person who has cleared the Customs House Clearing Agent s examination under Regulation 9 of the 1984 Regulations would again be required to appear for an examination. On the other hand a careful and harmonious reading of the various provisions of the 2004 Regulations and in particular, the Prefatory Statement, Regulation 6, the proviso to Regulation 8(1) and Regulation 9 of the 2004 Regulations reveal that the examination referred to in Regulation 8 includes the Customs House Clearing Agent s Examination under the old Regulations. Regulation 6 enumerates the conditions required to be fulfilled for grant of licence. Regulation 6 provides that the applicant or the person referred to in Clause (b) of sub-regulation (2) or Clause (b) of sub-regulation (3) of Regulation 5, as the case may be, or a person who has passed the examination referred to in Regulation 8 shall prove to the satisfaction of the Commissioner of Customs that the applicant or his authorized employee is a graduate from a recognized University and possesses the professional degree as specified in the said regulation, has diploma in c ..... 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