2012 (11) TMI 782 - AT - Customs

Appellate Tribunal rules in favor of CHA license applicant under CHALR-04, stresses subject equivalence

The Appellate Tribunal CESTAT, New Delhi, held that the appellant was eligible for a CHA license under CHALR-04 despite not having a professional degree ... CHA licence – qualification - application for issue of CHA licence was rejected on the ground that since she is only a graduates not having a professional degree i.e. CA/MBA/LLB/Diploma in Customs clearance work, or a G-Card, in terms of Regulation 6(a) of CHALR-04 she was required to have passed the examination as prescribed under Regulation 8 of CHALR-04 – Held that:- Board’s Circular No. 9/10, has clarified that those applicants who have passed the examination referred to Regulation 9 of CHALR-84, but were not given licence under the said regulation were required to appear in the examination and qualify the same under Regulation 8 of CHALR-04 in respect of additional subjects as provided in Notification No. 30/10-Cus. (N.T.), dated 8-4-2010 and the persons who qualify in the aforesaid examination shall be deemed to have passed the examination under Regulation 8 of CHALR-04 and would be considered for grant of CHA licence in terms of Regulation 9 of CHALR-04. The Commissioner’s other objection that an applicant who had passed examination from one Custom House cannot be considered for the grant of CHA licence from another Customs House is without any basis as the examination under Regulation 8 of the CHALR-04 and earlier under Regulation 9 of the CHALR-84 is conducted by Directorate General of Inspection and it would not be correct to refuse the CHA licence on the ground that the examination has been passed from some other Commissioner’s jurisdiction. - matter remanded back for de novo decision. Issues:1. Eligibility criteria for CHA license under CHALR-04.2. Interpretation of Regulations 6(a), 8, and 9 of CHALR-04.3. Consideration of Board Circulars 9/10 dated 8-4-2010 and 25/2011 dated 22-6-2011.4. Jurisdictional authority for CHA license application.5. Examination passing requirements for CHA license.Issue 1: Eligibility criteria for CHA license under CHALR-04The appellant applied for a CHA license under Public Notice No. 1/08 dated 4-1-2008. The Commissioner rejected the application citing the lack of a professional degree and passing the wrong examination. The Commissioner (Appeals) overturned this decision, stating that CHALR-04 does not disqualify those who passed the exam under CHALR-84. The Tribunal upheld this decision, emphasizing that the matter should be decided by the Jurisdictional Commissioner.Issue 2: Interpretation of Regulations 6(a), 8, and 9 of CHALR-04The Commissioner later rejected the appellant's application, stating she did not meet the qualification requirements under Regulation 6(a) of CHALR-04. The appellant argued equivalence between exams under CHALR-84 and CHALR-04. The Tribunal noted the similarity between the regulations and cited Board Circulars clarifying the need to pass additional subjects for equivalence. The Tribunal found the Commissioner's objection to the exam venue baseless, as exams are conducted by the Directorate General of Inspection.Issue 3: Consideration of Board Circulars 9/10 dated 8-4-2010 and 25/2011 dated 22-6-2011The Tribunal highlighted Circulars 9/10 and 25/2011, emphasizing the need to pass additional subjects for equivalence under CHALR-04. The Tribunal ruled that the appellant, if passing these subjects, should be deemed to have passed the required exam. The Commissioner's failure to consider these circulars led to the order's reversal and remand for a fresh decision.Issue 4: Jurisdictional authority for CHA license applicationThe Tribunal clarified that the Jurisdictional Commissioner should handle CHA license applications. The rejection based on jurisdiction of exam passing was deemed incorrect, as the exam's authority is centralized. The Tribunal set aside the order and directed a new decision based on their observations.Issue 5: Examination passing requirements for CHA licenseThe Tribunal emphasized the need to pass additional subjects for equivalence under CHALR-04, as per Board Circulars. Passing exams from different Customs Houses should not affect eligibility. The Tribunal set aside the Commissioner's order and remanded the matter for a fresh decision in line with their observations.This detailed analysis covers the eligibility criteria, interpretation of regulations, consideration of relevant circulars, jurisdictional authority, and examination passing requirements for a CHA license, as decided by the Appellate Tribunal CESTAT, New Delhi.