TaxTMI 
TaxTMI 
2014 (6) TMI 231
X X X X Extracts X X X X
X X X X Extracts X X X X
.... M/s. M.K. Saha & Co. is not entitled to get a CHA Licence in terms of Regulation 9(1) of CHALR'2004. Moreover, on verification of the antecedents of Shri Montosh Kumar Saha it has been found that a Charge Sheet vide No.260/10 dated 13.09.2010 u/Sec.419/468/471 IPC has been lodged at Baranagar P.S. against Shri Monotosh Saha which does not support an unblemished record." The petitioner Monotosh Kumar Saha and his brother Debtosh Saha were partners of a partnership firm M/s. Saha Shipping Agency, which carried on business, inter alia as clearing agent. The petitioner was granted a temporary Customs House Agent Licence No. S-60 in 1995. The licence was later confirmed and renumbered as S-64 vide an order dated 5th October, 1996. It transpires that disputes and differences arose between the petitioner Monotosh Kumar Saha and his brother Debtosh Saha and the said Debtosh Saha lodged an FIR against the petitioner, Monotosh Kumar Saha, at the Baranagar Police Station. The said Debtosh Saha also made representations/complaints to the Commissioner of Customs for suspension of the Customs House Agents Licence granted to the petitioner. The said Debtosh Saha also filed a Writ Petition No.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....een rejected by the order impugned. The application of the petitioner has been rejected on two grounds. The first ground is that the petitioner is not qualified under Regulation 8 of the Customs House Agents Licensing Regulation, 2004, hereinafter referred to as CHALR 2004, and also on the ground that on verification of the antecedents of the petitioner, it was found that a charge-sheet No.260 of 2010 dated 3rd September, 2010 had been issued against the petitioner under Sections 419/468/471 of the Indian Penal Code pursuant to a complaint lodged at Baranagar Police Station. Incidentally the complaint was lodged by Debtosh Saha, brother of the petitioner and partner of Saha Shipping Agency. It is not in dispute that the petitioner had been granted a licence under the Customs House Agents' Licensing Regulation, 1984. In exercise of power conferred under Section 146(2) of the Customs Act, 1962, the Central Board of Excise and Customs made the Customs House Agents' Licensing Regulations, 1984, hereinafter referred to as the CHALR 1984. Some of the provisions of the CHALR 1984 are set hereinbelow for convenience : "4. Invitation of application. - The Commissioner may invite applicati....
X X X X Extracts X X X X
X X X X Extracts X X X X
....equirements of regulation 5 and 6 shall be permitted to operate as Customs House Agent at the Customs Station for which the application is made initially for the period of one year against temporary licence granted by the Commissioner in this regard in Form B: Provided that when evidence is produced to the Commissioner that the applicant has already availed of two chances for qualifying in the written or oral examination prescribed in these regulation and would like to avail of the third chance as soon as the next examination is held in terms of regulation 9 and that the applicant has been able to account for the minimum volume of work prescribed for such agents in the course of one year's working, the Commissioner may extend the aforesaid period of one year for which the temporary licence has been granted by another six months or such further period not exceeding one year to enable the applicant to avail of the third chance for qualifying the examination in terms of regulation 9. While granting such extension the Commissioner of Customs shall satisfy himself that the requirements of Regulations 10(1)(a) and 10(1)(b) had been fully met by the applicant. (2) .......... (3) ...........
X X X X Extracts X X X X
X X X X Extracts X X X X
....llowing : (a) quantity or value of cargo cleared by such lincensee confirming to norms as may prescribed by the Commissioner; (b) absence of instances of delay either in the clearance of goods or in the payment of duty for any reason attributable to such licensee and any complaints of misconduct including non-compliance of any of the obligations specified in regulation 14. (2) ................ (3) The Commissioner may reject an application for the grant or regular licence to act as Customs House Agent if the holder of the temporary licence fails to qualify in the examination in terms of Regulation 9, or the holder of temporary licence on evaluation of his performance in terms of Regulation 10 is not considered suitable due to any other reason to be stated in the orders passed by the Commissioner.............................. 12. Period of validity of a regular licence. - (1) A licence granted under regulation 10 shall be valid for a period of five years, but may be renewed from time to time in accordance with procedure provided in subregulation (2). (2) The Commissioner of Customs, may on application made by the licensee, before the expiry of the validity of the licence under....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ll 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 clearance work within the jurisdiction of the said Commissioner of Customs. 5. Application for licence. - (1) An application for a licence to act as Customs House Agent in a Customs Station shall be made in Form A and shall, inter alia, contain the name and the address of the person applying; (2) If the applicant is a firm - (a) the name and address of every partner of the firm, the firm's name, and (b) the name of the partner or the duty authorized employee, who will actually be engaged in the clearance of goods or conveyance through the customs. (4) If the applicant is a company - (a) the name of each director, managing director, manager and (b) the names of director, managing director, manager of the duly authorized 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 per....
X X X X Extracts X X X X
X X X X Extracts X X X X
....stions on the following :- ............... (7) The Commissioner of Customs shall also satisfy himself whether the applicant, if he is an individual, possesses, or in the case of a firm or company, the persons who shall be actually engaged in the work relating to clearance of goods through customs on behalf of that firm or company, possess satisfactory knowledge of English and the local language of the Customs Station: Provided that in the case of persons deputed to work exclusively in the docks, knowledge of English shall not be compulsory. Knowledge of Hindi shall be considered as an additional or desirable qualification. (8) The holders of a licence under regular 9 may authorize any one or more of their employees or partners or directors to appear for the examination referred to in subregulation (1) on behalf of such holders of licence, in addition to the person of their agency who has passed the examination referred to in sub-regulation (1). 9. Grant of licence. - (1) The Commissioner of Customs shall on payment of a fee of Rs.5,000/- grant a licence in Form B to an applicant who has passed the examination referred to in regulation 8. (2) The Customs House Agents who are gr....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 9(3)(m) and 9(3)(o) of the 1984 Regulations provided as follows : "(m) drawback; (o) the provisions of allied Acts including Imports and Exports (Control) Act, 1947 (18 of 1947), Foreign Exchange Regulation Act, 1973 (46 of 1973), Indian Explosives Act, 1884 (4 of 1884), Arms Act, 1959 (54 of 1959), Opium Act, 1878 (1 of 1878) Drugs and Cosmetics Act, 1940 (23 of 1940) Destructive Insects and Pests Act, 1914 (2 of 1914), Dangerous Drugs Act, 1930 (2 of 1930) in so far as they are relevant to the clearance of goods through customs;" Regulation 8(6)(m) and 8(6)(o) of the 2004 provide as follows : "(m) drawback and export promotion schemes; (o) the provisions of allied Acts including 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], Indian Explosives Act, 1884 [4 of 1884], 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], Dangerous Drugs Act, 1930 [2 of 1930] in so far as they are relevant to the clearance of goods through customs;" On beh....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d Group 'A' officer from the Indian Customs and Central Excise Service having a minimum of ten years experience in Group 'A'." An applicant who has passed the examination under Regulation 8 would under the 2004 Regulations, and in particular, Regulation 9 be entitled to grant of licence subject to payment of the requisite fee." The view of this Court has been affirmed by the Supreme Court by its judgement dated 27th April, 2012 in Union of India & Anr. Vs. Sunil Kohli & Ors. in Civil Appeal Nos. 4053-4061 of 2012 [Arising out of SLP(C) Nos. 19124019132 of 2010]. As held by me in A.P. Clearing Agency Pvt. Ltd. & Anr. vs. Union of India & Ors. (supra) a temporary licence holder who had passed the examination under Regulation 9 of the CHALR 1984 is not required to clear an examination under Regulation 8 of the CHALR 2004 for grant of permanent licence. The place from which examination under Regulation 9 of the CHALR 1984 is not material. In the instant case, it appears that the petitioner had a regular licence. However, this licence was in the name of the firm M/s Shipping Agency. It was the petitioner who was actually engaged in the work of clearance of goods through customs on b....