TaxTMI 
TaxTMI 
TaxTMI 
2009 (11) TMI 190
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....d the writ petitioners is that they are engaged in the work of clearance of goods through Customs for the past several years and they are claiming that they have all passed the examination prescribed as per Regulation No. 9 of the customs House Agent Licensing Regulations (CHALR), 1984, which was framed under Section 146(2) of the Customs Act, 1962. According to the appellants/petitioners, regular licences are to be issued only to those persons, who are qualified as per the examinations referred to in Regulation 9 of 1984. (ii) The Central Board of Excise and customs made a new regulation called 'Customs House Agent Licensing Regulations, 2004' pursuant to the recommendations of the High Power Committee to simplify the processes and procedures for the grant of CHA licences. Under Regulation 9 of 2004, a candidate applying for licence must pass the examination in terms of Regulation 8 thereof for getting licence and the 1984 procedures for the grant of licence viz., first granting a temporary licence before passing the qualifying examinations, and then granting a regular licence after passing qualifying examinations within a year, has been done away with. A clarificatory circular w....
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.... get licence shall pass the same, it is also stated that with the advent of Intellectual Property Sector and other Global Evolution towards Technology, Medicine, etc, the Government of India appointed a High Power Committee and based on its recommendations new regulation was issued with effect from 23-2-2004. The appellants having not been issued or possessed with permanent licence, they are bound to apply, if they are qualified and undergo the process of selection and then only they can be given the licence under the present regulation. The contention of the appellants that 2004 Regulations protects their rights cannot be accepted as they were not granted licence till 23-2-2004 and the decisions of the Delhi High Court reported in 2006 (195) E.L.T. 15 (Del.) (Sunil Kohli v. Union of India) is not applicable to the facts of these cases as the applications were invited for the grant of licence under Regulation 1984 in June, 2003. Here in this case, no application was invited under the old regulation and only in the year 2008 applications were invited. It is further stated that it is the policy decision of the Government of India that petitioners who were intending to get licence are....
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....n No. 8 of 2004. The appellants/writ petitioners are bound to pass the examination under Regulation No. 8 of 2004, which contains new subjects as per the present requirement. The appellants cannot contend that the examination they have passed earlier is saved as per the preamble of 2004 Regulations. The learned counsel also submitted that the learned single Judge was perfectly right in dismissing the writ petitions as it is a policy decision taken by the Government of India, pursuant to which the new regulation was issued. The learned counsel also submitted that pursuant to the direction issued by the learned single Judge to consider the claim of the appellants, as it was extended to Delhi and Punjab, the matter was discussed by the Central Board of Excise and Customs and the Board took a decision that the appellants shall pass the examination under the new regulations, in the Judgment of the Delhi and Punjab & Haryana High Courts, the facts are entirely different, where the notification was issued inviting applications prior to the coming into force of the 2004 Regulations and took a decision stating that it is not possible to issue licence to the appellants without passing the ex....
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....ted, depending upon the necessity to issue number of licences. The licences issued under Regulation 10 would be valid for a period of five years subject to renewal. 11. Admittedly the appellants/writ petitioners have passed their written examinations based on the subjects/syllabus mentioned under 1984 Regulations. No notification inviting applications for issuing regular licences was issued after 1998 till 2008, as there was no necessity to issue any more licence during the said period. Section 146(1) of the Customs Act, 1962, provides that no person shall carry on business as Customs House Agent, unless he holds a licence granted in this behalf in accordance with the regulations, Section 146(2)(a) provides that the Central Board of Excise and Customs may make regulations providing for the authority, by which a licence may be granted under this section and the period of its validity. Regulation 4 of 1984 provides inviting applications for the grant of such number of licences as assessed by the Commissioner, to act as Customs House Agents in the month of January every year by means of a notice affixed on the notice board of each Customs Station as well as through publication in at ....
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....e) conversion of currency; (f) nature and description of documents to be filed with various kinds of bills of entry and shipping bills; (g) procedure for assessment and payment of duty; (h) examination of merchandise at the Customs Stations; (i) provisions of the Trade and Merchandise Marks Act, 1958 (43 of 1958), the Patents Act, 1970 (39 of 1970) and the Copy Rights Act, 1957 (14 of 1957). (j) prohibitions on import and export; (k) bonding procedure and clearance from bond; (l) re-importation and conditions for free re-entry; (m) drawback and export promotion schemes; (n) offences under the Act; (o) the provisions of allied Acts including the Foreign Trade (Development and Regulation) Act, 1992 (22 of 1992), the Central Excise Act, 1944 (1 of 1944), Foreign Exchange Management Act, 2000 (42 of 1999), the Indian Explosives Act, 1884 (4 of 1884), the Arms Act, 1959 (54 of 1959), the Narcotics Drugs and Psychotropic Substances Act, the Drugs and Cosmetics Act, 1940 (23 of 1940), Destructive Insects and Pests Act, 1914 (2 of 1914), the Dangerous Drugs Act, 1930 (2 of 1930), in so far as they are relevant to the clearance of goods through customs; (p) provisions of the prev....
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....xcise and Customs, New Delhi, in the circular dated 10-6-2004 and it is clarified as follows: Issue Raised Comments Regulation 8 1. Regulation 8 passed persons are eligible as applicants for the licence. Can the applicant be a Regulation 8 passed person from a different commissionerate? No, because the exam is to be taken only in respect of persons who have applied after the notice is published by the Commissioner of customs for work within his jurisdiction under regulation 4. 6. Can the provisions of CHALR 1984 relating to licence holders, regulation 9 qualified persons, 'H' and 'G' card holders be treated at par with holders of the same under CHALR 2004? They will be governed by the corresponding provisions of CHALR 2004. Thus, the very same issue raised by the appellants were considered and rejected by the Central Board of Excise and Customs, as early as in the year 2004. 16. The contention of the appellants/writ petitioners that they being eligible for issuance of licence under the 1984 Regulations, they should be issued with licence treating them as passed the examinations conducted under Regulation 8 of 2004, cannot be countenanced in view of the change of eligibilit....
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....ght. The appellants have not even applied for licence under Regulation of the year 1984 and the eligibility condition having been changed drastically in the year 2004 due to the intricacies of the procedures to be followed by the customs House Agents, the respondents cannot be found fault with. 20. whether the delay in consideration of application for renewal of mining lease could be pleaded for not applying the amended rule, was the issue considered by the Apex Court in the decision reported in (1981) 2 SCC 205: AIR 1981 SC 711 (State of Tamil Nadu v. M/s. Hind Stone) and in paragraph 13 it held thus, "13............... The submission was that it was not open to the government to keep applications for the grant of leases and applications for renewal pending for a long time and then to reject them on the basis of Rule 8-C notwithstanding the fact that the applications had been made long prior to the date on which Rule 8-C came into force, while it is true that such applications should be dealt with within a reasonable time, it cannot on that account be said that the right to have an application disposed of in a reasonable time clothes an applicant for a lease with a right to have....
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....ected as per the Preamble. For proper appreciation of the same, preamble in Customs House Agents Licensing Regulations, 2004, is extracted hereunder: "in exercise of the powers conferred by sub-section (2) of section 146 of the customs Act, 1962 (52 of 1962), and in supersession of the customs House Agents Licensing Regulations, 1984, except as respect things done or omitted to be done before such supersession, the Central Board of Excise and Customs hereby makes the following regulations." 23. As stated in paragraph 11 above, these regulations to issue Customs House Agents Licence are framed under section 146(2) of the Customs Act, 1962. Section 159-A of the Customs Act, 1962, also deals with the effect of amendment, etc., on rules, regulations, notifications or orders, which reads as follows: "159-A. Effect of amendments, etc., of rules, regulations, notifications or orders. - where any rule, regulation, notification or order made or issued under this Act or any notification or order issued under such rule or regulation, is amended, repealed, superseded or rescinded, then, unless a different intention appears, such amendment, repeal, supersession or rescinding shall not - (a)....
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....27 of 1952. (b) In the decision reported in (1997) 1 SCC 650 (Gajraj Singh v. State Transport Appellate Tribunal) the question arose as to whether the renewal of the permit of the appellant granted under the repealed Motor vehicles Act, 1939, is a permit under the Motor vehicles Act, 1988, and its operation was saved by section 217(2)(a) read with Sub-section (4) thereof, in paragraph 51 it is held as follows: "51. After giving careful and anxious consideration to the respective contentions, we find that there is some force in the contention of the respective counsel for the appellants. It bears repetition to state that the approved scheme under the Repealed Act or in the Act is a self-contained and self-operative scheme, it is a law by itself. The schemes published under the Repealed Act, as held earlier, are saved by Section 217(2)(a) of the Act. Therefore, until they are modified or cancelled under Section 102, the scheme should continue to be in operation in the notified area, route or part thereof. The right to apply for and obtain permit in the notified scheme was totally frozen to the private operators giving exclusive right to the STU to apply for and obtain permits to ru....
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.... in operation on the day on which the Act had come into force; three, it must not be inconsistent with the provisions of the Act and, fourth, the positive act should have been done before 1-7-1989. Positive act should have been done before the repeal of the Act to further secure any right. All the four conditions should be satisfied as conditions precedent for application of section 6 of the General Clauses Act." In paragraph 73 it is further held as follows: "73. On critical analysis and scrutiny of all relevant cases and opinions of learned authors, the conclusion becomes inescapable that whenever there is a repeal of an enactment and simultaneous re-enactment, the re-enactment is to be considered as reaffirmation of the old law and provisions of the repealed Act which are thus re-enacted continue in force uninterruptedly unless the re-enacted enactment manifests an intention incompatible with or contrary to the provisions of the repealed Act. Such incompatibility will have to be ascertained from a consideration of the relevant provisions of the re-enacted enactment and the mere absence of the saving clause is, by itself, not material for consideration of all the relevant prov....