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TMI Blog2016 (9) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... AJ SINGH Versus STATE TRANSPORT APPELLATE TRIBUNAL [1996 (9) TMI 607 - Supreme Court Of India] has been relied upon. It was held that adjudication is not required, while considering a renewal application. Grant or renewal of licence, is administrative in nature. Section 129 of the Customs Act, 1962, provides for an appeal. Bare reading of the Section may indicate that any decision or order passed by the adjudicating authority, can be appealed to the Tribunal. The Regulations dealing with grant of licence for renewal should be harmoniously read with the provisions of the Customs Act, 1962 and should be given the effect, in conformity with the legislative intent. On the principle of harmonious construction and going through the entire Regulations, it was held that an order, rejecting an application for renewal, is administrative in nature. The Tribunal held that the appeal filed against the order, on the application to renew the licence issued to the Customs House Agent, under the CHALR, 1984 or 2004, as the case may be, is not maintainable - no interference required with the order of the Tribunal - appeal dismissed - decided in favor of respondent. - C.M.A. No. 2969 of 2010 M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igible for renewal of their licence issued under Regulation 10(2) of the erstwhile CHALR, 1984 read with Public Notice No.59/94, dated 17.05.94, subject to fulfillment of other procedural requirements that may be required to be complied with as per Customs Act, 1962 and the Rules and Regulations made thereunder. 5. In exercise of the powers conferred on the Committee of Chief Commissioners, under Section 129(D)(1) of the Customs Act, 1962 r/w. Notification No.46/2005 Customs (NT), dated 08.06.2005, the said Committee has examined the records of proceedings, in which, the Commissioner of Customs (Seaport Import), Chennai, has passed an Order-in-Original No.5349/2006, dated 24.07.2006 and by observing that the abovesaid order of the Commissioner (Seaport Import), Chennai, dated 24.07.2006, as not proper and deserve to be reviewed, ordered as follows: 3. On examination of the above Order in Original, it appears that the above order of the Commissioner (Seaport Import), Chennai, is not proper and merits review in view of the following: (a) the ratio laid down by the Hon'ble CESTAT in the Auro Trans case would be applicable only in cases where the issue of renewal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Commissioner of Customs, Hyderabad 2009 (238) ELT 671, I reject the appeal of the Revenue as not maintainable before the Tribunal. 7. Being aggrieved by the aforesaid order, the Commissioner of Customs (Exports), Chennai, has filed the instant Civil Miscellaneous Appeal, on the following substantial questions of law: (1) Whether the order of CESTAT in the matter of CHALR, 2004 under the Customs Act, 1962, considering it as an administrative matter, is correct as per law? (2) Is not the order of the tribunal passed in Auro Trans case merged with the order of this Hon'ble Court passed in W.P.No.5678 of 2010 and cannot be a precedent? 8. Supporting the above substantial questions of law and inviting the attention of this Court to a decision of Calcutta High Court in Assistant Collector of Customs for Appraisement v. Soorajmull Nagarmull reported in AIR 1952 Cal 656 = 56 CWN 453 = 2000 (125) ELT 328 (Cal.), Mr.Sundareswaran, learned counsel appearing for the appellant submitted that exercise of power by the Commissioner of Customs (Seaport Import), in the matter of renewal of licence is quasi-judicial in character and therefore, when any decision or order is made ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ort-Import), is appealable to CESTAT, Chennai, under the provision of Section 129(D) of the Customs Act, which reads as follows: 129D. Powers of Board or Commissioner of Customs to pass certain orders:- (1) The Committee of Chief Commissioners of Customs may, of its own motion, call for and examine the record of any proceeding in which a Commissioner of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Customs in its order. (2) The Commissioner of Customs may, of his own motion, call for and examine the record of any proceeding in which an adjudicating authority subordinate to him has pas sed any decision or order under this Act for the purpose of satisfying himself as to the legality or propriety of any such decision or order and may, by order, direct such authority to apply to the Commissioner (A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or revoking licence, under Regulation 20, learned counsel for the 1st respondent further submitted that as per the abovesaid Regulations, if any Customs House Agent is aggrieved by any decision or order passed under Regulation 20 or sub-regulation (7) of regulation 22, he may prefer an appeal under Section 129A of the Act to the Customs, Central Excise and Service Tax Appellate Tribunal established under sub-Section (1) of Section 129 of the Act. In this context, he also drew the attention of this Court to Regulation 20, which deals with suspension or revocation of licence and the same is extracted hereunder: (1) The Commissioner of Customs may, subject to the provisions of regulation 22, revoke the licence of a Customs House Agent and order for forfeiture of part or whole of security, or only order forfeiture of part or whole of security, on any of the following grounds, namely :- (a) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under regulation 10; (b) failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record. 14. On the facts and circumstances of this case, we deem it fit to address the issue, as to whether, merely because, the Commissioner of Customs (Seaport-Import), the licencing authority, has acted as an adjudicating authority, to adjudge an issue, as to whether, the 1st respondent is entitled to get the licence, issued by the Commissionerate, Chennai, renewed under Regulation 10(2), irrespective of the fact that when the original licence, at Vizag Customs has not been renewed, whether the duty to be discharged by him, at the time of considering a renewal application is adjudicatory or administrative, in nature? 15. On facts, the licencing authority has exercised his powers, as an adjudicating authority and therefore, an argument can be advanced that an order or decision made therein is appealable. But the issue to be decided is, under the scheme of Regulations, governing grant or renewal of licence, whether the power is administrative or adjudicatory? 16. Question of law framed by the appellant is whether, the order of CESTAT, in the matter of CHALR, 2004 under the Customs Act, 1962, considering it as an administrative matter, is correct as per law. 17. Bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le to the Commissioner evidencing possession of assets of the value of not less than ₹ 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 ₹ 50,000/- in the case of each of the other Customs Stations, 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 than 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 Regulations, 1965 have been operating in the said Customs Stations on the basis of one licence, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ugned order. (3) In case the number of applicants fulfilling the conditions prescribed under regulation 6 is more than the number of licences to be issued as assessed under regulation 4, the Commissioner may adopt seniority in experience as G pass holder of such applicants as the criterion to give precedence to the applicants : Provided that if more than one applicant has the same period of experience, the applicant who is older in age 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 on payment of prescribed examination fee of ₹ 500/- for each examination. - (2) The examination referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 authorise 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 in sub-regulation (1). 10. Grant of regular licence.- 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 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 payment of duty for any reason attributable to such licensee and any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ioner may, on his own motion or otherwise call for and examine the records of any proceedings in which the Commissioner has passed any order under sub-regulation (3) for the purpose of satisfying himself as to the legality, propriety or correctness of such order and may pass such orders as he may deem fit. No order under this sub-regulation shall be made so as to prejudicially affect any person unless such person is given reasonable opportunity for making a representation and being heard in his defence, if he so desires. (6) No order shall be made under sub-regulation (5) or sub-regulation (2) of regulation 8 in relation to an order passed by Commissioner under sub-regulation (3) or sub-regulation (1) of regulation 8, as the case may be, after the expiry of one year from the date on which such order was passed by the Commissioner. 18. Licence has been issued to the 1st respondent/CHA at Visakapatnam and their branch licence is stated to be registered with Chennai Customs. The said licence has expired on 16.03.2006. Customs House Agent has sought for permission, for renewal of licence issued in Chennai. The Commissioner of Customs, Chennai, as Licencing Authority, has fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Custom House Agent licence; (1) 150 documents (e.g., Bills of Entry, shipping Bills and baggage forms) per year. OR (2) Clearance or shipment of 2000 packages per year. OR (3) Clearance or shipment of packages of value not less than ₹ 10 Crores per year. (4) Payment of duty not less than ₹ 2 Crores per year. 22. Besides, the Commissioner of Customs (Seaport-Import)/Licencing Authority, has also observed that the 1st respondent has not come to adverse notice that there was no due in respect of any Bond executed or any demand pending against the CHA and that the CHA has also furnished the details of the Service Tax, Income Tax payment particulars, etc. After considering the norms and other particulars, stated supra, the Commissioner of Customs, vide order, dated 24.07.2006, at Paragraph 14, ordered as follows: Applying the ratio laid down by the Hon'ble CESTAT in the Auro Trans Case, and also after analysis of their performance indicators for Chennai, it therefore emerges that the CHA/Applicant is very much eligible for renewal of their licence issued under Regulation 10(2) of the erstwhile CHALR, 1984 read with Public Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ove conditions, besides a pass in the examination. As per Regulation 10(3), the Commissioner may reject an application for the grant of regular licence, to act as Custom House Agent, if the holder of the temporary licence fails to qualify in the examination in terms of Regulation 9, or the holder of temporary licence on evaluation of his performance in terms of Regulation 10 is not considered suitable due to any other reason to be stated in the order passed by the Commissioner. 25. As per Regulation 10(4), any person aggrieved by the order of the Commissioner passed under sub-regulation (3) of regulation 10 may represent to the Chief Commissioner of Customs or Chief Commissioner of Customs and Central Excise, as the case may be, against such order, within 30 days of the communication of the impugned order. As per Regulation 10(5), the Chief Commissioner may, on his own motion or otherwise call for and examine the records of any proceedings in which the Commissioner has passed any order under regulation 10(3) for the purpose of satisfying himself as to the legality, propriety or correctness of such order and may pass such orders as he may deem fit. No order under this sub-regula ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at Paragraph 7, held as follows: 7. It will thus be seen that a quasi-judicial decision is nothing but an administrative decision, some stage or some element of which possesses judicial characteristics. The decision, whether quasi-judicial or administrative, is taken by the competent authority in the exercise of its discretion. But the distinguishing feature of the two kinds of acts is the mode or manner in which the opinion on the basis of which the act is done by the authority in the exercise of its discretion, is formed. The decision would be quasi-judicial if in reaching that decision the authority is required first to ascertain certain facts by means of evidence and is then free to take such action as it may think fit on the facts so ascertained. 29. In Chingleput Bottlers v. Majestic Bottling Company reported in 1984 (3) SCC 258, at Paragraphs 32, 35 and 39, held as follows: There are no inflexible rules of natural justice of universal application. Each case depends on its own circumstances. Rules of natural justice vary with the varying constitutions of statutory bodies and the rules prescribed by the Legislature under which they have to act. An authority or b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issioner, which came to be disposed of, by informing that there is no statutory provision in CHALR, 2004, for filing an appeal. Thereafter, the licencee filed a further appeal to the Tribunal, which held that the order passed by the Commissioner, rejecting renewal, is administrative in nature and against which, an appeal is not maintainable. So saying, the Tribunal dismissed the appeal. A writ petition has been filed. At Paragraph 6, the Hon'ble Division Bench of Bombay High Court, posed a question, as to whether, how an appeal, regarding renewal, is maintainable. After considering the statutory provisions, at Paragraph 8, the Hon'ble Division Bench held as follows: 8. On the other hand, so far as Regulation 11(2) is concerned, it provides for renewal and while considering renewal, what has to be considered is, if the performance of the licensee is found to be satisfactory in terms set out under Regulation 11(2). These are the requirements after the licence has been granted. Application for grant of licence and for revocation of that licence are distinct and different. No appeal is provided under Section 11 whereas, an appeal is provided under Regulation 9(4) in those ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctory 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 payment of duty for any reason attributable to such licensee and any complaints of misconduct including non-compliance of any of the obligations specified in regulation 14. Regulation 12(3) states that the fee for renewal of a licence under sub-regulation (2) shall be ₹ 3,000/-. 34. Renewal of licence is as good as granting a new licence, granted under the provisions of an Act. It has the effect of continuation of licence already granted. In Gajraj Singh v. State Transport Appellate Tribunal reported in 1997 (1) SCC 650, the Hon'ble Supreme Court considered a case for renewal of licence, under the Motor Vehicles Act, 1988 and held that renewal of licence means a new licence, granted by way of renewal. The Hon'ble Apex Court held that while considering an application for renewal, all the conditions required to be complied with, under the statutory provisions, rules or regulations, as the case may be, for grant of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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