TaxTMI 
TaxTMI 
2012 (10) TMI 638
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....appellants were initially employed by the Custom House Agents, who were having regular licences. They were granted G-Cards under Clause 20(6) of the 1984 Regulations. They qualified the examinations conducted by the competent authority between 1995 and 2003 under Clause 9 of the 1984 Regulations. In response to Public Notice No. 25/2003 dated 20.06.2003 issued by the Commissioner of Customs, Delhi (for short, 'the Commissioner') for grant of temporary licences under Clause 8 of the 1984 Regulations, the appellants submitted applications in the prescribed proforma along with the required documents. The relevant portions of Notice dated 20.06.2003 are extracted below: "OFFICE OF THE COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) NEW CUSTOM HOUSE: NEW DELHI C.No . VIII( H)13/72/2002/Pt. Dated: 20.06.2003 PUBLIC NOTICE NO. 25/2003 SUBJECT: Inviting applications for temporary Customs House Agents Licenses under CHA Licensing Regulations, 1984 - regarding. Attention of the Trade and all public is invited to Regulation 4 of Customs House Agents Licensing Regulations 1984. In terms of the provisions contained therein, fresh applications are invited, in the prescribed profor....
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....in the light of the recommendations made by the High-powered Committee on Reduction of Transaction Costs of Indian Exports and the Kelker Committee on Indirect Taxes. After three and a half months, the Board framed new regulations titled the Customs House Agents Licensing Regulations, 2004 (for short, 'the 2004 Regulations'), which were notified on 23.02.2004. The Commissioner then issued Circular dated 21.5.2004 for conducting examinations under Clause 8 of the 2004 Regulations for holders of temporary licence under the 1984 Regulations and also for authorised employees/partners/directors as mentioned in Clause 8(8) of the 2004 Regulations. That circular reads as under: "OFFICE OF THE COMMISSIONER OF CUSTOMS (IMPORT AND GENERAL) NEW CUSTOM HOUSE: NEW DELHI C.No.VIII ( H)13/66/04/1151 Dated 21.5.04 CIRCULAR It has been directed to hold the written examination under regulation 8 of the CHA Licensing Regulation, 2004 on 14/06/2004 from 10.00 Hrs. to 13.00 Hrs. at New Customs House near IGI Air Port Complex, New Delhi-37. The examination is for holders of Temporary Licence under Regulation 8 of the CHALR 1984, and also for authorized employees/ partners/Directors as ....
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....orized to transact business under regulation 9(2)? 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 (b) 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. Regulation 9 Under Regulation Holders of regular 9(2), a regular licence under CHALR licence holder 1984 will be deemed under regulation to be licence 9(1) shall beholders under the eligible to work corresponding in all stations provisions of subject to regulation 9(1) of intimation in Form CHALR 2004 and enjoy 'C'. the benefits under (a) Is this regulation 9(2). benefit applicable only to licence holders under regulation 9(1) of CHALR 2004, or can also be extended to those holding regular licences under CHALR 1984? (b) can persons who have qualified the exam under regulation 9 of 1984 be exempted from appearing the exam referred to in regulation 8 of CHALR 200....
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....ustom House Agents Licensing Regulation 1984. Pursuant to the issuance of the above stated Public Notice, 563 applications were received for grant of temporary Custom House Agents Licenses under Regulation 4 of the Custom House Agents Licensing Regulations, 1984. The applications called and received under Public Notice No.25 /2003 were ordered to be kept pending and not to be processed further by an order dt . 8 th December, 2003 issued under F.No.502 /9/2002- Cus VI ( Pt.II ) by the Central Board of Excise and Customs, Department of Revenue, Ministry of Finance, New Delhi. Since the new regulations for the purpose were being formulated by the Ministry Pursuant to the recommendations of the high powered committee on reduction of Transaction Costs of Indian Exports and the recommendations of the Kelker Committee on indirect taxes. As the process of making amendments to the Said CHALR' 1984 have been initiated, the Board has directed that the process of fresh recruitments of Customs House Agents be kept in abeyance till the time new regulations are notified. Whereas, now the Custom House Agent Licensing regulations' 1984 have been rescinded w.e.f . 23.02.2004 and new Custom ....
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....ns, subject to fulfillment of the conditions specified in Clauses 6 and 9 thereof. In compliance of the order of the learned Single Judge, the Commissioner issued Notice Nos.54 of 2005 dated 17.10.2005 and 56 of 2005 dated 16.11.2005, entertained the applications filed by the appellants and granted licences to all those who satisfied the conditions prescribed under the 2004 Regulations. After about 3 months, the official respondents filed letters patent appeal along with an application for condonation of 182 days' delay. The Division Bench of the High Court condoned the delay, introduced the concept of vacancies in what it thought to be the cadre of Customs House Agents and disposed of the appeal by directing that the concerned authority shall process the case of the appellants, who had qualified the examinations for grant of licence under the 1984 Regulations with the rider that such of the appellants, who could not have been granted licence under the 1984 Regulations on account of the vacancies which existed till 2004 would be governed by the new regulations. This is evident from the following text of the impugned judgment: "Learned counsel for the appellants contend ....
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....tion 146(1) of the Customs Act, 1962 declares that no person shall carry on business as an agent relating to the entry or departure of a conveyance or the import or export of goods at any customs station unless such person holds a licence granted purpose in accordance with the regulations. Section 146(2) empowers the Board to make regulations for the purpose of carrying out the provisions of that section including the grant of licence. In exercise of that power the Board has, from time to time, framed regulations. Since we are concerned with the 1984 and the 2004 Regulations, it will be useful to notice the relevant clauses thereof. The same are as under: Customs House Agents Licensing Regulations, 1984 "4. Invitation of application The Commissioner may invite applications for the grant of such number of licences as assessed by him, 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 least two newspapers having circulation in the area of his jurisdiction specifying therein the last date of receipt of application. Such application shall be for clearanc....
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....or such additional Customs Stations. The Commissioner may also waive the need for separate compliance of the requirement of Regulation 11 in such cases: Provided further that in places where there is more than one Commissioner exercising jurisdiction over different Customs Stations and Custom House Agents licensed under the Custom House Agents Licensing Regulation 8 from the Commissioner, other that the one who has issued them the existing licence, without being required to comply with the requirements of Regulation 6 in regard to financial viability or the requirements as to fresh deposit in terms of Regulation 11. 8. Grant of temporary licence 1. Any applicant whose application is received within the last date specified in Regulation 4 and who satisfies the requirements of Regulation 5 and 6, shall be permitted to operate as Custom House Agent at the Customs Station for which the applications made initially for the period of one year against temporary licence granted by the Commissioner in this regard in Form B (See Form No.48 in Part 5). Provided that when evidence is produced to the Commissioner that the applicant has already availed of two chances for qualifying in....
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....ral examination and will be conducted twice every year. Each applicant would be permitted to avail of a maximum of three chances to qualify in the said examination but all such chances should be availed of within a maximum period of 2 years from the date of grant of temporary licence. (Explanation: A person who qualifies in the written examination, but fails in the oral test linked to it, shall be treated as having failed in that chance; but he will not be required to appear in the written examination in the subsequent chances.) 3. The examination may include questions on the following : - a. preparation of various kinds of bills of entry and shipping bills; b. arrival entry and clearance of vessels; c. tariff classification and rates of duty; d. determination of value of assessment; 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 of Merchandise Marks Act, 1958 (43 of 1958); j. prohibitions of import and export; k. bonding proced....
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....ranted regular licencee under Regulation 10, shall be eligible to work in all Customs Stations subject to fulfillment of the following requirements: a. the licensee shall make an application to the Commissioner of the concerned Customs Station where he intends to transact business for purposes of registering himself and his authorised staff; b. he fulfils the conditions stipulated in clause (b) of Regulation 6 relating to financial soundness and possesses the ability to provide adequate warehousing and transport facilities at the place of clearance of goods and production of evidence relating to availability of sufficient clientele at his disposal; c. he shall also be required to enter into a separate bond in Form D (See Form 50 in part 5) for due observation of these regulations and to furnish a separate Bank Guarantee for each Customs Stations as stipulated under Regulation 11; (he shall produce evidence of knowledge for the local language of the Customs Station, at which he wished to conduct business; ). d. On fulfilment of the aforesaid conditions, the Commissioner of the Customs Station at which the licensee intends to transact business shall grant a licence in For....
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....ngaged in the clearance of goods or conveyances through the customs. (3) If the applicant is a company ? (a) the name of each director, managing director, manager, and (b) the names of director, managing director, manager or the duly authorised employee, who will actually be engaged in the clearance of goods or conveyances through the customs. 6. Conditions to be fulfilled by the applicant. -- The applicant referred to in clause (b) of sub-regulations (2) and (3) of regulation 5, as the case may be, or a person who has passed the examination referred to in regulation 8, shall prove to the satisfaction of the Commissioner of Customs, that- (a) the applicant, or his authorized employee, is a graduate from a recognized University and possesses a professional degree viz. C.A./M.B.A./ L.L.B ./Diploma in Customs Clearance work from any Institute or University recognized by the Government with a working knowledge of computers and customs procedures, or is a graduate having at least three years experience in transacting Custom House Agent work as a G-Card holder, or a person who has passed the examination referred to in regulation 8, or is a retired Group 'A' officer from....
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.... Customs Stations within the country subject to intimation in Form C to the Commissioner of Customs of the concerned Customs Station where he intends to transact business. No separate licence shall be required in places where in addition to a Customs House handling imports by sea, there is also an International airport to handle imports by air, even if under the jurisdiction of a different Commissioner of Customs." An analysis of above reproduced clauses makes it clear that the procedure prescribed in the 1984 Regulations and the 2004 Regulations for grant of licence to act as Custom House Agent is substantially similar. In terms of Clause 4 of the 1984 as also the 2004 Regulations, the Commissioner is empowered to invite applications in the month of January every year for grant of the specified number of licences as assessed by him, to act as Custom House Agents. An application for grant of licence to carry the business as Custom House Agent is required to be made in the prescribed form along with the necessary documents. If the Competent Authority is satisfied that the applicant fulfills the prescribed eligibility conditions then he can be considered for grant of licence. Howe....