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TMI Blog2009 (4) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... se, we may point out that the petitioner in representation dated 28.12.2007 had sought for hearing in the circumstances set out therein. Merely because the regulation expressly does not provide for a hearing, would not mean that the petitioner should not be given a hearing - order passed to dispose of an appeal within 12 weeks X X X X Extracts X X X X X X X X Extracts X X X X ..... cordingly, dismissed the appeal. Petitioners have thereafter come before this Court by way of writ petition impugning the order of the Commissioner. 5. In the first instance, it is submitted on behalf of the petitioners by the learned counsel that under the Regulations, an appeal would be maintainable before the Chief Commissioner of Customs or in alternative, an appeal considering the provisions of Regulation 22(8) could be filed before the CESTAT. It is submitted that the application for renewal for all purposes is a fresh application and accordingly, an appeal would lie. Reliance was placed on the judgment of the Supreme Court in Falcon Air Cargo and Travels (P) Ltd. v. Union of India 2002(140) E.L.T. 8 (Del.). Delhi High Court has note ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore any court of law against him or he has been convicted in any court of law." Regulation 9(4) is relevant. It reads as under: "9(4) Any applicant aggrieved by the order of the Commissioner of Customs passed under sub-regulation (3) may appeal to the Chief Commissioner of Customs or Chief Commissioner of Customs and Central Excise, as the case may be, within a period of thirty days from the communication of such order." Other relevant Regulation is Regulation 11 which reads as under: "11. Period of validity of a licence.- (1) A licence granted under regulation 9 shall be valid for a period of ten years from the date of issue and shall be renewed from time to time in accordance with the procedure provided in sub-regulation (2). (2) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (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 cases, where an application for licence is rejected under regulation 9(3). We are, therefore, clearly of the opinion that no appeal lies against the order of the Commissioner rejecting an application for renewal. It may be mentioned that in case of Customs House Agent licence, our a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Tribunal and consequently, the order of the learned Commissioner suffers from non-application of mind. On this count also, it is submitted that the order should be set aside. On the other hand, on behalf of the respondents, the learned counsel submits that there is no statutory right to be heard under the Regulation and in those cases, where a party has to be heard in person, the Regulations have so provided. It is, therefore, submitted that the question of giving personal hearing would not arise in the matter. It is further submitted that the order passed against Unnikrishnan was in respect of penal proceedings. Unnikrishnan was a partner of the petitioner's firm. Mere setting aside of the order against Unnikrishnan would be of no con ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the said order. After quoting from the said order, the learned Commissioner proceeded on the footings that Unnikrishnan as a partner of the CHA firm was involved in the export fraud. Admittedly, in proceedings taken out by Unnikrishnan against the said order, it was set aside. Once the Tribunal has proceeded to rely upon an order which was set aside that by itself would disclose non-application of mind or relying on irrelevant matrial. This is irrespective of the fact that whether the order in Unnikrishnan was in respect of the penal proceedings or not. Considering that irrelevant material was considered, it would vitiate the order much as considering extraneous material. On this count also, therefore, the impugned order is liable to be set ..... X X X X Extracts X X X X X X X X Extracts X X X X
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