TaxTMI 
TaxTMI 
2012 (10) TMI 1134
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..... 3. The facts giving rise to this application are very briefly enumerated hereinafter. 4. The petitioner No. 1 Ravindra Kamalakant Shukla @ Ravindra K. Shukla (hereinafter referred to as 'Shukla') is the partner of the petitioner No. 2, Pacific Ocean Shipping Agency of 67, Laxmipalli, Post-Morepukur, Rishra, District-Hooghly, (hereinafter referred to as 'Pacific'). Pacific is a partnership firm of which Shukla, one Biswanath Brahma and one Ajay Pudder are partners. The firm is not registered under the Indian Partnership Act, 1932. 5. Shukla and his partners carry on business as Customs House Agents. According to the petitioners, Shukla, the principal partner of Pacific has vast experience in the Customs House Agency Business. 6. Section 146 of the Customs Act provides that no person shall carry on business as 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 in this behalf in accordance with regulations. 7. Section 146(2) of the said Act empowers the Board to make regulations for the purpose of carrying out the provisions of Section 146.....
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....f by his agent. (2) An agent appointed by the person in charge of a conveyance and any person who represents himself to any officer of customs as an agent of any such person in charge, and is accepted as such by that officer, shall be liable for the fulfilment in respect of the matter in question of all obligations imposed on such person in charge by or under this Act or any law for the time being in force, and to penalties and confiscations which may be incurred in respect of that matter." 9. 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 application 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 jurisdi....
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....tisfies the requirements of regulations 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)&ems....
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....nce who qualifies in an examination referred to in regulation 9 and whose performance is found to be safisfactory with reference, inter alia, to the following : (a) quantity or value of cargo cleared by such licensee confirming to norms as may be 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 of 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 b....
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.... enter or clear such vessels or aircrafts for work incidental to his employment as such agent. 4. Invitation of application. - The Commissioner of Customs may invite applications for the grant of such number of licences as assessed by him, to act as Customs House Agent 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 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 duly authorized employee, who will actually be engaged in the clearance of goods or conveyance throug....
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....ts declared successful in written examination shall be called for oral examination. (3) ............. (4) An applicant shall be allowed a maximum period of seven years within which he shall pass both the written and oral examinations. No further extension of time shall be granted. (5) Notwithstanding anything contained in sub-regulation (4), any person who holds a temporary licence granted under regulation 8 of the Customs House Agents Licensing Regulations, 1984, shall be allowed to pass the examination within a period of two years from the date of commencement of these regulations. (6) The examination may include questions 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 d....
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....f the CHALR, 2004, and was, therefore, not entitled to license from the Kolkata Commissionerate. The petitioners have contended that the application of Shukla was rejected by the order impugned, in violation of the principles of natural justice without giving the petitioner an opportunity of being heard. 15. The short question in this writ application is whether the application of the petitioner No. 1 for license under CHALR, 2004 could have been rejected on the ground that the petitioner No. 1 had cleared the examination under Regulation 9 of CHALR, 1984 from Mumbai and not from Kolkata. 16. In the unreported judgment dated 5th September, 2006 of this Court in W.P. No. 204 of 2006 [A.P. Clearing Agency Pvt. Ltd. & Anr. v. Union of India & Ors.] this Court held that a temporary license holder, who had passed the examination under Regulation 9 of CHALR, 1984 was not required to clear an examination under Regulation 8 of the 2004 Regulations for grant of permanent license. This Court further held that : "A comparative reading of Regulation 9(3) of the 1984 Regulations and Regulation 8(6) of the 2004 Regulations show that the syllabus prescribed under the 2004 Regul....
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.................... The prefatory statement to the 2004 Regulations clearly states that the said 2004 Regulations have been issued superseding the 1984 Regulations except in respect of things done or omitted to be done before such supersession. [exphasis supplied] The 2004 regulations expressly save things done before framing of the said 2004 Regulations. There is nothing in the 2004 Regulations wherefrom it may be deducted that a person who has cleared the Customs House Clearing Agent's examination under Regulation 9 of the 1984 Regulations would again be required to appear for an examination. On the other hand a careful and harmonious reading of the various provisions of the 2004 Regulations and in particular, the Prefatory Statement, Regulation 6, the proviso to Regulation 8(1) and Regulation 9 of the 2004 Regulations reveal that the examination referred to in Regulation 8 includes the Customs House Clearing Agents' Examination under the old Regulations. Regulation 6 enumerates the conditions required to be fulfilled for grant of licence. Regulation 6 provides that the applicant or the person referred to in Clause (b) of sub-regulation (2) or Clause (b) of sub-regulatio....