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TMI Blog2003 (9) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... n the connected writ petition, it has been prayed that Regulation 6(a) of the Customs House Agents Licensing Regulations may be declared as ultra vires and unconstitutional. 2.The writ petitions have been resisted by the Union of India and other two respondents. It has been submitted by the Additional Solicitor General appearing on behalf of the respondents that Regulation 8 has already been upheld by the Supreme Court in the decision reported in 1997 (91) E.L.T. 519 (S.C.) = 1996 (10) SCC 136 (Federation of Customs House Agents Association and Others v. Union of India and Others) and Regulation 8 has to be read along with Regulation 8 and in view of the decision of the Supreme Court that Regulation 6 is not ultra vires. The orders passed by the respondents 2 and 3 are also sought to be justified on merit. 3.Before considering the questions raised, it is necessary to notice the relevant provisions :- Section 2(35) of the Customs Act lays down that "regulations" means the regulations made by the Board under any provision of this Act. Section 146 provides that no person shall carry on business as an agent relating to the entry or departure of a conveyance or the import or exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use (b) of sub-regulations (2) and (3) of Regulation 5 as the case may be, shall prove to the satisfaction of the Commissioner that : (a) the applicant is a graduate from recognised University and is an employee of a licensee and that he possesses a permanent pass 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 passholder : Provided that the Commissioner may relax the possession of permanent pass in Form G to one year for reasons to be recorded in writing." 4.A perusal of Regulation 5 makes it clear that an application for a licence to act as a Customs House Agent can be made by an individual or a firm or a company. Where the application is filed by a partnership firm, the application in Form A is required to indicate the name of the partner or the duly authorised employee, who will actually be engaged in the clearance of goods or conveyances through the customs. Similarly, where the applicant is a company, the application is required to disclose the name of the director, manager or the duly authorised employee, who will actually ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n behalf of the employer. 7.A careful scrutiny of all the provisions construed harmoniously makes it clear as follows :- An application can be filed by an individual, by a firm or by a company and an individual himself can do the work of an employee without engaging anybody. An individual or a company or a firm may engage an employee to undertake the actual work of clearing. In the latter event, it is not necessary that such individual or the partner or the director of the company to himself possess an identity card in G Form. If it is construed that an individual has to be an employee under a licensee in order to be eligible to a licence, such construction may give rise to hostile discrimination between an individual or a firm or a company. If the Regulations, particularly Regulation 6, are construed in the manner indicated, the question of hostile discrimination would not arise, and therefore, such interpretation should be preferred. 8Regulation 8. contemplates grant of temporary licence and it is extracted hereunder :- "8.Grant of temporary licence. - (1) Any applicant whose application is received within the last date specified in Regulation 4 and who satisfies the requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case he has passed the examination referred to in sub-regulation (3), (ii) in Form H (See Form No. 53A in Part 5), in case he has not passed such examination, and (iii) 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.It is the contention of the petitioner that Regulations 5 and 6 contemplate that a duly authorised employee can be engaged to actually work as customs house agent. Where such licence is to be given to a firm or a company, it is not necessary that all the partners of the firm or the directors of the company should possess a pass in Form G and it is sufficient if the employee, who is authorised to work as customs house agent, has got such permanent form in Form G. It has been further contended that since the petitioner has engaged three employees, who hold such permanent passes, rejection of the application of the petitioner for the issuance of temporary licence to operate as the customs house agent is arbitrary. 10.A close scrutiny of Regulation 6 read with Regulation 5 as well as the relevant forms, nam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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