9911796707
TMI Blog2008 (1) TMI 379X X X X Extracts X X X X X X X X Extracts X X X X ..... on is available, then it is open to the holder of the licence to operate the license. The license being personnel to the person on his death it cannot be operated - 115 of 2007 - -` - Dated:- 11-1-2008 - F.I. Rebello and R.S. Mohite, JJ. S/Shri A.S. Rao with Mrs. S.V. Bharucha, Ms. Rutuja Ambekar and H. P. Chaturvedi, for the Appellant. S/Shri D.B. Shroff, Sr. Counsel with Vinay Asarkar, Vinod Kothari and Ketan Dhulsunge i/b Apex Law Partners, for the Respondent. [Judgment per : F.I. Rebello, J. (Oral)]. - The respondents herein was having a CHA License valid upto 31st December, 2006. It appears from the record that they have appointed one Shri Girish P. Manjeshwar, who was a Regulation 9 Pass holder (now Regulation 8 as per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd an order came to be passed on 21st May, 2007 whereby it was held that the order to make inoperative the CHA license was absolutely necessary. Aggrieved the Respondents preferred an Appeal. 2. The learned Tribunal on consideration of the provisions of the Regulations and more specifically Regulation 15(2) of the CHALR, 2004, held that it would be applicable only in the case when there is a change of constitution of the firm or company. The Proviso to Rule 15(2) of the CHALR, 2004 and the time limit of two years prescribed therein is applicable only in the case of demise or retirement of the person and not in the case of resignation, which is the case here. It was further held that the proviso to Regulation 15(2) is not at all applicab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inafter shall be referred to as CHALR, 2004. There is no dispute that in the present case the respondents had a valid license which would have expired on 31st December, 2006. We may at once note the provisions of Regulation 15 which are reproduced below :- "15. Change in constitution of any firm or Company - (1) In the case any firm or a Company, holding a licence under these regulations, any change in the constitution thereof shall be reported by such firm or Company, as the case may be, to the Commissioner of Customs as early as possible, and any such firm or a Company indicating such change shall make a fresh application to the said Commissioner of Customs within a period of sixty days from the date of such change for the grant of li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rry on the business of a Customs House Agent with the approval of the Commissioner of Customs till such time such partner, director or employee passes the said examination." A perusal of Regulation 15(2) would indicate that the license would cease to be in force on the death or retirement of a person as referred to therein. The proviso permits in the event there is no qualified person for replacement in the firm or Company, the firm or Company authorise any other partner, director or employee who is a "G" card holder, to pass the relevant examination within a period of two years from the date of demise or retirement of the person and in such a case there is discretion in the Commissioner notwithstanding that if there be no qualified perso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... else; (c) any misconduct on his part, whether within the jurisdiction of the said Commissioner of Customs or anywhere else which in the opinion of the Commissioner renders him unfit to transact any business in the Customs Station. (2) Notwithstanding anything contained in sub-regulation (1) the Commissioner of Customs may in appropriate cases where immediate action is necessary, suspend the licence of a Customs House Agent where an enquiry against such agent is pending or contemplated." The licence once validly issued can only be revoked or forfeited in the circumstances set out therein. In the instant case it is not the case of the Appellants that they have cancelled or forfeited the licence. Therefore, the case is not covered by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be in force for the period of its term, unless it is cancelled or revoked in terms of Regulation 20. On failure to have a qualified person at the highest, it merely becomes inoperative for the time being, but the moment a qualified person is available, then it is open to the holder of the licence to operate the license. The license being personnel to the person on his death it cannot be operated. The expression ceasing to be in force must be so read. In our opinion once the petitioner had communicated to the appellants by letter that a qualified license holder was being appointed from 1 st week of October, 2006 the appellants were bound to permit the respondents to operate the license. 8. In our opinion, therefore, though the Tribuna ..... X X X X Extracts X X X X X X X X Extracts X X X X
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