TMI Blog2009 (11) TMI 190X X X X Extracts X X X X X X X X Extracts X X X X ..... 10330, 12250 and 13366 of 2009, the petitioners seek to quash the Public Notice No. 140/2008 dated 31-12-2008 and to direct the first respondent therein to accept the candidature of the petitioners for the grant of licence under Regulation 9(1) of the CHARL, 2004 so as to act as Customs House Agent. 3. Since the issues involved in the writ petitions as well as in the writ appeals are identical, both the writ petitions and writ appeals are heard together and this Common Judgment is passed. 4. (i) The case of the appellants and the writ petitioners is that they are engaged in the work of clearance of goods through Customs for the past several years and they are claiming that they have all passed the examination prescribed as per Regulation No. 9 of the customs House Agent Licensing Regulations (CHALR), 1984, which was framed under Section 146(2) of the Customs Act, 1962. According to the appellants/petitioners, regular licences are to be issued only to those persons, who are qualified as per the examinations referred to in Regulation 9 of 1984. (ii) The Central Board of Excise and customs made a new regulation called 'Customs House Agent Licensing Regulations, 2004' pursuant to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nter affidavit before the learned single Judge by contending that mere passing the examination conducted under old Regulation No. 9, without obtaining a permanent licence under the said regulation will not confer any right to the appellants merely because the second respondent did not call for any application for issuing such licence till 31-12-2008, and the appellants having not been issued with licences and the new regulation having come into force, which prescribed a new syllabus/subject for the examination, anybody intending to get licence shall pass the same, it is also stated that with the advent of Intellectual Property Sector and other Global Evolution towards Technology, Medicine, etc, the Government of India appointed a High Power Committee and based on its recommendations new regulation was issued with effect from 23-2-2004. The appellants having not been issued or possessed with permanent licence, they are bound to apply, if they are qualified and undergo the process of selection and then only they can be given the licence under the present regulation. The contention of the appellants that 2004 Regulations protects their rights cannot be accepted as they were not grante ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the matter and come up with a scheme to remove the difficulties of the appellants while implementing 2004 Regulations as in other areas in Delhi and Punjab. 8. Mr. K. Ravi Anantna Padmanaban, learned counsel appearing for the respondents submitted that merely because the appellants/writ petitioners have passed the examination under the old regulations and they having not been issued with licence under the said regulations, they cannot claim to seek a relief to treat the said examination as the examination conducted under Regulation No. 8 of 2004. The appellants/writ petitioners are bound to pass the examination under Regulation No. 8 of 2004, which contains new subjects as per the present requirement. The appellants cannot contend that the examination they have passed earlier is saved as per the preamble of 2004 Regulations. The learned counsel also submitted that the learned single Judge was perfectly right in dismissing the writ petitions as it is a policy decision taken by the Government of India, pursuant to which the new regulation was issued. The learned counsel also submitted that pursuant to the direction issued by the learned single Judge to consider the claim of the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1959), Opium Act, 1978 (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; (p) procedure in the matter of refund of duty paid, appeals and revision petitions under the Act." After passing the said examinations one has to apply for the grant of regular licence under Regulation 10 in Form 'B'. Regular licences are issued for the Customs House Agents on the basis of the applications invited, depending upon the necessity to issue number of licences. The licences issued under Regulation 10 would be valid for a period of five years subject to renewal. 11. Admittedly the appellants/writ petitioners have passed their written examinations based on the subjects/syllabus mentioned under 1984 Regulations. No notification inviting applications for issuing regular licences was issued after 1998 till 2008, as there was no necessity to issue any more licence during the said period. Section 146(1) of the Customs Act, 1962, provides that no person shall carry on business as Customs House Agent, unless he holds a licence granted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... centres and specified dates and an applicant shall be allowed a maximum period of seven years within which he should pass both written as well as oral examinations. Regulation 8(6) contain syllabus/subjects for the examinations to be passed under 2004 Regulations, which reads as follows: "8(6) 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 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), the Patents Act, 1970 (39 of 1970) and the Copy Rights Act, 1957 (14 of 1957). (j) prohibitions on import and export; (k) bonding procedure and clearance from bond; (l) re-importation and conditions for free re-entry; (m) drawback and export promotion schemes; (n) offences under the Act; (o) th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minimum of ten years experience in Group-A, apart from having financial viability and he should be a citizen of India.' From the above qualifications prescribed for applying for written examinations, it is evident that the entire eligibility requirement is changed and there is no provision for issuing temporary licence and the only licence contemplated is the regular licence. 15. The issue as to whether a person, who passed examination under the 1984 Regulations, is automatically entitled to get licence under the 2004 Regulation was considered by the Ministry of Finance Central Excise and Customs, New Delhi, in the circular dated 10-6-2004 and it is clarified as follows: Issue Raised Comments Regulation 8 1. Regulation 8 passed persons are eligible as applicants for the licence. Can the applicant be a Regulation 8 passed person from a different commissionerate? 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. Can the provisions of CHALR 1984 relating to licence holders, regulation 9 qualified persons, 'H' and 'G' card h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt upheld the rule, which was given effect to retrospectively. It is also to be noted that in the said judgment the respondent therein appeared in the interview for the promotion post and no final decision was taken, in the meanwhile the rule was retrospectively amended. The Supreme Court set aside the judgment of the Delhi High Court and held that the said respondent cannot challenge the giving effect of amendment retrospectively, as no vested right was taken away. 19. The appellants/writ petitioners at best were having liberty to apply for licence. The same cannot be treated as a vested right. The appellants have not even applied for licence under Regulation of the year 1984 and the eligibility condition having been changed drastically in the year 2004 due to the intricacies of the procedures to be followed by the customs House Agents, the respondents cannot be found fault with. 20. whether the delay in consideration of application for renewal of mining lease could be pleaded for not applying the amended rule, was the issue considered by the Apex Court in the decision reported in (1981) 2 SCC 205: AIR 1981 SC 711 ( State of Tamil Nadu v. M/s. Hind Stone ) and in paragraph ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C paras 21 and 22 and Sharma Transport v. Govt. of A.P., SCC paras 13 to 24.). Therefore, the High Court again went wrong by invoking the principle of "promissory estoppel" to allow the petition filed by the respondents herein. 7. For the foregoing reasons, the view adopted by the High Court cannot be sustained." 22. The learned counsel for the appellants/writ petitioners submitted that the preamble of 2004 Regulations saves the claim of the appellants/writ petitioners and that there was omission to invite application for the issuance of licence on the part of the respondents and therefore their rights are protected as per the Preamble. For proper appreciation of the same, preamble in Customs House Agents Licensing Regulations, 2004, is extracted hereunder: "in exercise of the powers conferred by sub-section (2) of section 146 of the customs Act, 1962 (52 of 1962), and in supersession of the customs House Agents Licensing Regulations, 1984, except as respect things done or omitted to be done before such supersession, the Central Board of Excise and Customs hereby makes the following regulations." 23. As stated in paragraph 11 above, these regulations to issue Customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -8-1960 under the Orissa Mining Areas Development Fund Act, (Act 27 of 1952) is valid after the supersession of the Act. It is held that every later enactment which supersedes an earlier one or puts an end to an earlier state of the law is presumed to intend the continuance of rights accrued and liabilities incurred under the superseded enactment, unless there were sufficient indications-express or implied-in the later enactment designed to completely obliterate the earlier state of the law. It is further held that the notices were valid and the amounts due thereunder could be recovered notwithstanding the disappearance of Orissa Act, 27 of 1952. (b) In the decision reported in (1997) 1 SCC 650 ( Gajraj Singh v. State Transport Appellate Tribunal ) the question arose as to whether the renewal of the permit of the appellant granted under the repealed Motor vehicles Act, 1939, is a permit under the Motor vehicles Act, 1988, and its operation was saved by section 217(2)(a) read with Sub-section (4) thereof, in paragraph 51 it is held as follows: "51. After giving careful and anxious consideration to the respective contentions, we find that there is some force in the contention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf and to that effect. This view does justice also to all concerned." (c) Both the above decisions were considered in the decision reported in (2006) 3 SCC 354 (Gammon India Ltd. v. Special Chief Secretary) and in paragraph 61 the Supreme Court held thus, 61. In Gajraj Singh case the Court observed that the proceedings under the repealed Act would be continued and concluded under the Act as if the Act was not enacted. The Court observed that four things would emerge from its operation, one, there must exist a corresponding provision under the Act in pari materia with the repealed Act; two, the order of permit granted must exist and be in operation on the day on which the Act had come into force; three, it must not be inconsistent with the provisions of the Act and, fourth, the positive act should have been done before 1-7-1989. Positive act should have been done before the repeal of the Act to further secure any right. All the four conditions should be satisfied as conditions precedent for application of section 6 of the General Clauses Act." In paragraph 73 it is further held as follows: "73. On critical analysis and scrutiny of all relevant cases and opinions of lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of India ) and Punjab Haryana High Court in the case of Union of India v. Shree Narendra M. Prabhakar in CWP. No. 15463 of 2005 to the present case. The issue decided by the Delhi High Court and Punjab Haryana High Court are that after inviting applications under the old regulations for issuing licence whether the Department was justified in applying new regulations. The facts in these cases are entirely different as admittedly in the present case the applications were invited by the respondent only in the year 2008 i.e., about four years after coming into force of 2004 Regulations on 23-2-2004. 27. We have also taken note of the decision taken by the Central Board of Excise and Customs on 10-8-2009, pursuant to the order passed by this court in the impugned Judgment i.e., 2004 Circular has to be applied on All India basis and there are large number of applicants having passed the examination under Regulation 9 of 1984, presently seeking CHA licence and therefore unless the candidates are eligible and passed the examinations prescribed under 2004 Regulations, they cannot be treated to have passed examinations under 2004 Regulations. 28. In the light of the above findin ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
