TMI Blog2017 (10) TMI 37X X X X Extracts X X X X X X X X Extracts X X X X ..... ger insist that persons who have passed the examination under the 1984 Regulations have to additionally qualify in the subjects contained in the said circular dated 06.02.2013, contentions to the contra, made in the instant writ appeal, do not merit any consideration - denial of grant of license withheld - appeal dismissed - decided against appellant. - W. A. No. 42 of 2013, M. P. No. 1 of 2013 - - - Dated:- 22-8-2017 - S. Manikumar And V. Bhavani Subbaroyan, JJ. For the Appellants : Mr. V. Sundareswaran For the Respondent : Mr. P. Saravanan JUDGMENT ( Made by S. Manikumar, J. ) Challenge in this appeal is to an order made in W.P. No.24210 of 2012 dated 01.12.2012, by which, the Writ Court, directed the Commissioner of Customs (Imports), Chennai-1 and the Assistant Commissioner of Customs, Chennai-1, appellants 2 and 3 herein, to issue necessary certificate, granting Customs House Agent Licence to the respondent, as per Regulation 9 of the Customs House Agent Licence Regulation, 2004, on the respondent complying with the requirements prescribed under Regulation 10 of the said regulation, within a period of 8 weeks from the date of receipt of a copy of the o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ully qualified the examinations conducted under 1984 Regulation. 6. Before the writ court, contention has also been made that a learned single Judge of the Madurai Bench of the Madras High Court in W.P. No.10355 of 2012 dated 14.08.2012, granted relief to the petitioner therein, for issuance of licence, who had passed the qualifying examination under Regulation 9 of CHALR 1984. Further, contention has also been made that though a representation has been made to the Assistant Commissioner of Customs, Chennai - 1/2nd appellant herein, there was no response and hence the prayer for Mandamus, as stated supra. 7. Before the writ court, the Assistant Commissioner of Customs, Chennai-1/the third respondent herein, in the counter affidavit, filed on behalf of appellants 2 and 3 herein, submitted that CHALR 1984, has been superseded by CHALR 2004 with effect from 23.02.0204, in which, it has been clearly mentioned that persons, who qualified under Regulation 8 of CHALR 2004 alone are eligible for grant of CHALR licence. Regulation No.8 of CHALR 2004 was amended by Notification No.30/2010 dated 08.04.2010, by which clause (9) has been added to the said regulation, which states Notwith ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zance of clauses 1 to 5 of Regulation 8 of CHALR, 2004, but clauses 6 to 9 of Regulation 8 of CHALR, 2004, were subsequently added by Notification No.30/2010 dated 08.04.2010, which the Hon'ble Supreme Court, did not have an occasion, to consider. Appellants have further contended that the decision of the Hon'ble Supreme Court in Mangalore Chemicals and Fertilisers Limited's case was based on the legal position, which existed at that point of time and clause 9 of Regulation 8 of CHALR, 2004, was not introduced, which begins, with an opening sentence Notwithstanding anything contained in these Regulations . Therefore, the appellants have contended that clause 9 of Regulation of CHALR, 2004, has overriding effect. 12. However, before the Writ Court, appellants have submitted that licences were issued to the appellants in W.P. No.472 of 2010, based on the order dated 31.03.2010, passed by this court and further added that, at the time of passing of the said order, clause 9 of Regulation of CHALR, 2004, was not in existence. Said clause came into effect only on 08.04.2010, after the passing of an order by this court, and in the above said circumstances, issuance of lic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion has been made that the grounds of appeal, in W.A. No.410/2012, are similar to the contentions made in W.P. No.24210/2010, said writ appeal has been admitted by a Division Bench and there was an absolute order of stay against the order made in W.P. No.11699/2011 dated 28.09.2011. 17. At the time when the instant appeal came up for further hearing, we directed Mr.V.Sundareswaran, learned counsel for the appellants, to furnish the details of W.A. No.410 of 2012. 18. Reverting, Mr.V.Sundareswaran, learned counsel for the appellants, filed a typed set of papers dated 10.08.2017 and reiterated the very same objections, made in the counter affidavit, filed before the writ court, as to the date of coming into force of Regulation, 2004 and also the interpretation of Clause 9 of Regulation 8 of 2004, which began with a Notwithstanding clause. Contention has also been made that when the decision in W.P. No.5472/2010 dated 31.03.2010, was made, clauses 6 to 9 of Regulation 8 of CHALR, 2004, subsequently amended by Notification No.30/2010 dated 08.04.2010, were not in existence and therefore, decisions rendered prior to the coming into force of the amendment, would not be made applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 05.04.2013, that the view of the Sunil Kohli's case has been accepted by the Department and that the Revenue has issued Circular No.06/2013 dated 06.02.2013, the Hon'ble Supreme Court has ordered here under: 8. By the communication dated 5-4-2013, the Central Board of Customs and Excise has informed Shri Prasad, that the revenue has accepted the view expressed by this court in Sunil Kohli's case and accordingly they have issued a Circular NO.06/2013 dated 6.2.2013. 9. The instructions so received by Shri Prasad reads as under: Now, subsequent to order in C.A. Nos.4053-4061 of 2012 in the case of Sunil Kohli Ors. v. Union of India and Ors., vide order dated 27-4-2012, C.B.E. C. has issued Circular No.06/2013 thereby deleting para 8.1 and 802 of Circular No.09/2010-Customs dated 8.4.2010. Thus need of passing a special examination for Regulation 9 candidates of earlier regulation (CHAIR, 1984) no more exists for consideration of fresh licence. Hence, it is stated that the issues involved in both the cases viz. SLP (C) Nos.6026/2012 and 5143/2012 are similar and Circular No.06/2013 which addresses the concern of the appellants may be broug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling of electronic Customs declarations (g) Narcotic drugs and Psychotropic Substances Act, 1985; and (h) Foreign Exchange Management Act, 1999 Thus, subject to fulfillment of all others requirements such persons will now be directly eligible for grant of CHA Licence. 4. These instructions may be brought to the notice of the trade by issuing suitable Trade/Public Notices. Suitable Standing orders/instructions may be issued for the guidance of the field officers. Pending court cases, if any, may also be suitably handled. 5. Difficulties faced, if any, may be brought to the notice of the Board immediately. 25. Thus reading of the above circular, makes it abundantly clear that, those who have passed the examination under 1984 Scheme, need not have to appear for examination again for CHALR, 2004. Added further, W.A. No.410/2012 relied on by the department, has been tagged along with W.A. Nos.2359 and 2636 and 2638 of 2012. On the basis of the submissions of the learned counsel appearing for both parties, a Hon'ble Division Bench of this Court vide common judgment in W.A. No.410/2012 dated 10.06.2013, dismissed all the appeals, as here under: Th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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