TaxTMI 
TaxTMI 
2016 (9) TMI 1224
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....ondent has sought for renewal of Chennai licence. It is the case of the appellants that on examination, it was found that they were allowed to operate as CHA in Chennai Customs under Regulation 10(2) of the Customs House Agents Licensing Regulations (CHALR), 1984, on the basis of CHA licence issued to them, under Regulation 10(1) of the said Regulations, by Visakapatnam Customs. 3. CHA/1st respondent herein has submitted a letter, dated 14.06.2006, narrating their claim for renewal of the licence issued by the Chennai Commissionerate. In support of their claim, they relied on a Tribunal's decision in M/s.Auro Trans Maritime Services Pvt. Ltd., v. Commissioner of Customs, Chennai reported in ELT 130 (Tribunal), wherein, it has been held that a branch CHA licence issued under Regulation 10(2) of the CHALR, 1984, has to be treated as an independent licence and therefore, the same has to be adjudged on its own merits. They also submitted that there was no allegation of mala fide or fraud against the CHA and prayed for renewal. 4. After considering the oral submissions and the norms prescribed to measure the performance of a CHA, when an application is filed for renewal of CHA....
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....der of the Commissioner is legal and proper and whether the said order should be set aside." 6. Thereafter, the Commissioner of Customs (Seaport-Import), Chennai, has filed an appeal, under Section 129(D)(4) of the Customs Act, 1962, before the CESTAT, Chennai. Going through the order and placing reliance on the decisions in A.S.Vasan & Sons v. Commissioner of Customs (General), Mumbai [2008 (230) ELT 374] (Mum.)], M.Dutta Agency v. Commissioner [1998 (1) LCX 77 (Cal.)], P.Cawasji and Co's case [2000 (119) ELT 606] and G.P.Jaiswal's case [2008 (226) ELT 707], the CESTAT, Chennai, on 14.07.2009, has passed the following orders, "2. I have heard both sides. It has already been held by the Tribunal in the case of A.S.Vasan & Sons v. Commissioner of Customs (General), Mumbai [2008 (230) ELT 374], that an order relating to renewal of CHA licence is administrative in nature and not a quasi-judicial order against which an appeal is maintainable before the Tribunal. The Tribunal has held that an appeal does not lie before the Tribunal following the judgment of the Hon'ble Calcutta High Court in M.Dutta Agency v. Commissioner [1998 (1) LCX 77] and Tribunal's deci....
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....ay go. 89. This is the main point debated before us. The difference between an executive and a judicial or a quasi judicial act has been pointed out by the Supreme Court in the Province of Bombay v. K.S.Advani and Ors. (1950) SCR 621 Kenai, C. J., after a review of the cases, said at p. 633: "It seems to me that the true position is that when the law under which the authority is making a decision, itself requires a judicial approach, the decision will be quasi-judicial. Prescribed forms of procedure are not necessary to make an inquiry judicial, provided in coming to the decision the well recognised principles of approach are required to be followed. In my opinion, the conditions laid down by Slesser, L. J., in his judgment correctly bring out the distinction between a judicial or quasi-judicial decision on the one hand and a ministerial decision on the other" 9. Inviting the attention of this Court to Paragraph 4 of the order of the Commissioner of Customs, dated 24.07.2006 and the issue adjudicated by him, as to whether, the 1st respondent was entitled to get the licence issued by the Commissionerate, Chennai, renewed under Regulation 10(2), irrespective of t....
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....ths from the date of communication of the order under sub-section (1) or sub-section (2) to the adjudicating authority, such application shall be heard by the Appellate Tribunal or the Commissioner (Appeals), as the case may be, as if such application were an appeal made against the decision or order of the adjudicating authority and the provisions of this Act regarding appeals, including the provisions of sub-section (4) of section 129A shall, so far as may be, apply to such application " 10. Per contra, inviting the attention of this Court to Regulations 6 to 11 and 21 to 23 of the Customs House Agents Licensing Regulations (CHALR), 1984, applicable to the facts of the case, Mr.S.Murugappan, learned counsel appearing for the 1st respondent submitted that grant of licence is an administrative order. He also submitted that renewal of licence is as good as, grant of fresh licence and therefore, whatever conditions required to be complied with, by the 1st respondent for grant of licence, equally applies for renewal of licence and therefore, when there is no substantial difference between a fresh licence and renewal, the order of the Commissioner of Customs (Seaport-Import), dated ....
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.... fifteen days from the date of such suspension, give an opportunity of hearing to the Customs House Agent whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs House Agent." According to the learned counsel appearing for the 1st respondent, the power exercised by the Commissioner of Customs, for suspending or revoking the licence, under Regulation 20, is quasi-judicial nature, whereas, the power exercised for grant of licence or renewal is administrative. 12. Placing reliance on the order of the Calcutta High Court in M.Dutta Agency v. Commissioner of Customs reported in 1998 (101) ELT 581, learned counsel for the 1st respondent submitted that when an application for renewal is rejected, Customs Act, 1962 and the Regulations do not provide for an appeal, but the only remedy available to the licencee is to invoke the extraordinary jurisdiction of this Court, under Article 226 of the Constitution of India. Conversely, when renewal is granted, the appellant cannot approach CESTAT, by filing an appeal, under Section 129(D)(4) of the....
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....id Commissioner. 5. Application for licence.- (1) An application for a licence to act as a Custom 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; and (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 duly authorised employee, who will actually be engaged in the clearance of goods or conveyances through the customs. (3) If the applicant is a company - (a) the name of each director, manager, managing director, and (b) the names of 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 or the person referred to in clause (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 a recognised University and is an employee of a licensee and that he possesses a permanen....
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....cence.- (1) Any applicant whose application is received within the last date specified in Regulation 4 and who satisfies the requirements of Regulations 5 and 6, shall be permitted to operate as Custom 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 regulations 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 in the examination in terms of Regulation 9. While granting such extension, the Commissioner of Cust....
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.... (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 for 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 and Merchandise Marks Act, 1958 (43 of 1958); (j) prohibitions on import and export; (k) bonding procedure and clearance from bond; (l) re-importation and conditions for free re-entry; (m) drawback; (n) offences under the Act; (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 ....
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....tion 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 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 of the local language of the Customs Stations, at which he wishes 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 Form "D" authorising him to transact business at that Customs Station : Provided that no separate licence would be required in places where in addition to a Custom 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. (3) The Commissioner may reject an application for the grant of regular licence to act as Custom House....
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.... granted by the Chennai Commissionerate. 19. Perusal of the Order-in-Original, dated 24.07.2006, shows that the 1st respondent/CHA submitted an application for renewal of licence and along with the application, the 1st respondent/CHA has submitted a letter, dated 14.06.2006, stating that as per M/s.Auro Trans Maritime Services Pvt. Ltd., v. Commissioner of Customs, Chennai reported in ELT 130 (Tribunal), a branch CHA licence issued under Regulation 10(2) of the CHALR, 1984, has to be treated as an independent licence from the main licence issued elsewhere. While considering the application for renewal, the Licencing Authority has been granted personal hearing and that the Consultant has made also oral submissions. 20. Order of the Commissioner of Customs, dated 24.07.2006, indicates that the Department has sought to negate the request for renewal of licence, issued by the Customs House, Chennai, under Regulation 10(1), by relying on the decisions of this Court in W.P.No.5678 of 2000, dated 30.03.2000 and W.P.No.402 of 2003, dated 17.04.2006. In the abovesaid circumstances, the Commissioner of Customs (Seaport-Import), Licencing Authority, has framed an issue for adjudication,....
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....Commissioner of Customs shall grant regular licence. As per Regulation 10(2), Custom House Agents, granted regular licences under Regulation 10, shall be eligible to work in all Customs Stations, subject to fulfilment 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 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 of the local language of the Customs Stations, at which he wishes to conduct business; (d) on fulfilment of the aforesaid conditions, the Commissioner o....
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....which means that in a given case, the Commissioner of Customs has granted a regular licence, the Chief Commissioner of Customs, can suo-motu examine the legality, propriety or correctness of the same. The power exercised by the Chief Commissioner, at this stage, is suo-motu or otherwise. An administrative power is conferred on the Chief Commissioner to examine and pass appropriate orders. 27. In Province of Bombay v. Khushaldas S.Advani reported in AIR 1950 SC 222, the Hon'ble Apex Court has laid down a test, to find out, as to whether, an authority making an order, under an Act, is required to act as a quasi-judicial authority or in the administrative capacity. At Paragraph 7, the Hon'ble Apex Court held as follows: "Every decision of the executive generally is a decision of fact and in most cases affects the rights of someone or the other. Because an executive authority has to determine certain objective facts as a preliminary step to the discharge of an executive function, it does not follow that it must determine those facts judicially. When the executive authority has to form an opinion about an objective matter as a preliminary step to the exercise of a ce....
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.... "40. There is nothing in the language of Rule 7 of the Rules to suggest that in refusing to grant the privilege, the Commissioner is obliged to act 'judicially'. The order refusing a licence under Rule 7 is purely an administrative or executive order and is not open to appeal or revision. There is no lis between the Commissioner and the person who is refused such privilege. The power of refusal of licence unlike the power to grant is not subject to any pre- condition." 30. In M.Dutta Agency v. Commissioner of Customs reported in 1998 (101) ELT 581, a writ petition was filed, challenging the correctness of an order, rejecting renewal of licence. Revenue has raised a primary objection, on the maintainability of the writ petition, contending that the Tribunal is vested with the powers to hear a Custom's appeal, against the order of an adjudicating authority, and inasmuch as the Additional Collector of Customs therein, had exercised the powers invested on him, under the Customs Act, 1962, as an Adjudicating Authority, an appeal would lie to the Tribunal. Per contra, on behalf of the licencee, contentions have been made, against an order, refusing to renew the lic....
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....e appeal would lie against the refusal to renew CHA licence. Considering the language of Section 129A(1)(a) of Customs Act, 1962, the learned Judge held that an appeal is provided against the suspension or revocation but not for refusal to renew CHA licence. We are clearly of the opinion that no appeal lies against the order rejecting an application for renewal. In absence of any other remedy it is open to this Court to exercise its extraordinary jurisdiction in case where an application for renewal is rejected." 32. Going through the Regulations, 1984 or 2004, as the case may be, it could be deduced that order, revoking or suspending the licence is likely to affect the CHA and therefore, regulations have been framed, making a provision for filing an appeal. But as regards, an order, refusing to grant renewal, through the CHA is likely to be affected, scheme of the regulations, only grants a right to the licencee to make a representation to the Chief Commissioner. Thus, it could be seen that if an application for renewal is rejected, the CHA can only make a representation and if his grievance is not addressed, he can only approach the High Court under Article 226 of the Constitu....