TMI Blog2014 (6) TMI 231X X X X Extracts X X X X X X X X Extracts X X X X ..... LR 2004. The licence of the petitioner has not been rejected only on the ground that the petitioner has not cleared the examination under Regulation 8 of CHALR 2004, but also on the ground that on verification of the antecedents of the petitioner it was found that a charge-sheet had been issued under Sections 419/468/471 of the Indian Penal Code which did not support an unblemished record - There can be no doubt that a person guilty of commission of an offence may be debarred from licence. However, it is one thing to be charged with an offence and a different thing to be held guilty of actual commission of that offence. Chances of false implication cannot altogether be ruled out, particularly in a case like the present one, where family disputes have cropped up. It would, in my view, be totally arbitrary and against all norms of fair play to deprive a citizen of his right to carry on business in the absence of any verdict of a Court of law holding him guilty of a criminal offence. The petitioner had carried on business as clearing house agent. A licence had been issued to him. It is a case of continuance of business and/or deprivation of the right to carry on business - a per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner. The said Debtosh Saha also filed a Writ Petition No.16945 of 2010 in this court which was disposed of by an order dated 25th January, 2011, the relevant part whereof is set out hereinbelow for convenience:- The writ petitioner has alleged that the private respondent, being the other partner of M/s. Saha Shipping Agency, has opened a Bank Account in the name of the partnership firm by forging the signature of the petitioner. A criminal case has been initiated Proceedings have commenced. It is true, as argued on behalf of the respondent authorities, that the allegations of forgery are required to be investigated into. However, the licence having been issued to a partnership firm of which both the petitioner and the private respondent are partners, the licence would necessarily have to be revoked if there, are such serious disputes between the partners. When one of the two partners of a partnership firm has sought suspension of the licence granted to the partnership, the licence cannot be allowed to operate. The licence would necessarily have to be cancelled. The partnership firm cannot continue with a licence under the Customs House Agents Licensing Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvenience : 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 jurisdiction, specifying therein the last date of receipt of application. Such application shall be for clearancework within the jurisdiction of the said Commissioner. 5. Application for licence. (1) An application for a licence to act as a 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, and (2) If the applicant is a firm - (a) the name and address of every partner of the firm name and (b) the name of the partner or the duly authorized 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 authorized e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Regulations 10(1)(a) and 10(1)(b) had been fully met by the applicant. (2) . (3) . 9. Examination of the applicant. (1) The holder of a temporary licence in the case of an individual and the person or persons who will be actually engaged in the work of clearance of goods through customs on behalf of the firm or company holding a temporary licence, as the case may be, shall be required to qualify in examination, at the earliest opportunity. Such person or persons shall be eligible to appear in the examination as soon as temporary licence is granted and shall be permitted to avail of three chances within a period of 2 years from the date of issue of the temporary licence on payment of prescribed examination fee of Rs.5000/- for each examination. (2) The examination referred to in sub-regulation (1) shall include a written and oral examination and will be conducted twice every year. Each applicant would be permitted to avail of a maximum of three chances to qualify in the said examination but all such chances should be availed of within a maximum period of 2 years from the date of grant of temporary licence. (3) The examination may include questions on the fol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on made by the licensee, before the expiry of the validity of the licence under sub-regulation (1) renew the licence for a period of five years from the date of expiration of the original licence granted under regulation 10 or of the least renewal of such licence, as the case may be, if the performance of the licensee is found to be satisfactory with reference, inter alia to the following:- (a) quantity or value of cargo cleared by such licensee conforming to norms as may be prescribed by the Commissioner. (b) Absence of instances of delay either in the clearance or in the payment of duty for any reason attributable to such licensee any complaints of misconduct including non-compliance of any of the obligations specified in regulation 14. (3) The fee for renewal of a licence under subsection (2) shall be Rs.3000/-. 13. Licence not transferable. Every licence granted or renewed under these regulations shall be deemed to have been granted or renewed in favour of the licensee and to licence shall be sold or otherwise transferred. The CHALR 1984 has been replaced by the Customs House Agents Licensing Regulations, 2004, hereinafter referred to as CHALR 2004. Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The applicant referred to in clause (b) of sub-regulations (2) and (3) of regulation 5 as the case may be, or a person who has passed the examination referred to in regulation 8, shall prove to the satisfaction of the Commissioner of Customs, that (a) the applicant, or his authorized employee, is a graduate from a recognized University and ossesses a professional degree viz. C.A./M.B.A./L.L.B./Diploma in Customs Clearance work from any Institute or University recognized by the Government with a working knowledge of computers and customs procedures, or is a graduate having at least three years experience in transacting Customs House Agent work as a Gcard holder, or a person who has passed the examination referred to in regulation 8, or is a retired Group A officer from the Indian Customs and Central Excise Service [IC CES] having a minimum of ten years experience to Group A . (b) the applicant has financial viability supported by a certificate issued by a Scheduled Bank or such other proof acceptable to the Commissioner of Customs evidencing possession of assets of value of not less than Rs.2 lakhs; (c) the applicant is a citizen of India. 7. . 8. Examina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o an applicant who has passed the examination referred to in regulation 8. (2) The Customs House Agents who are granted licences under sub-regulation (1) shall be eligible to work in all Customs Stations within the country subject to intimation in Form C to the Commissioner of Customs of the concerned Customs Station where he intends to transact business. No separate licence shall be required in places where in addition to a Customs 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 of Customs. CHALR 1984 provided for grant of a temporary licence, and later, upon clearance of an examination as provided in Regulation 9, regular licence which was to be valid for a period of five years, but renewable. CHALR 2004 has, however, done away with grant of two licences, one temporary and the other regular. Regulation 9 provides for grant of licence to an applicant who has passed the examination referred to in Regulation 8, subject to payment of the requisite fee. The short question in this writ application is, whether the application of the petitioner No.1 for license under CHALR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 behalf of the respondents it was argued that the new regulations have made the examinations more stringent by introduction of additional subjects as indicated above. It was also argued that the passing of an examination did not, in itself, create any right to a regular licence under the 1984 Regulations. Grant of regular licence was linked to performance and quantity and value of cargo clearance. Even an applicant who had cleared the examination could be refused regular licence. . 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 requir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me 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 behalf of the firm. It was the petitioner who appeared for the examination. The petitioner cannot be disqualified on the ground of not having cleared the examination under Regulation 8 of CHALR 2004. The licence of the petitioner has not been rejected only on the ground that the petitioner has not cleared the examination under Regulation 8 of CHALR 2004, but also on the ground that on verification of the antecedents of the petitioner it was found that a charge-sheet had been issued under Sections 419/468/471 of the Indian Penal Code which did not support an unblemished record. CHALR licence is essential for carrying on business as Customs House Agent. The question is whether a licence to carry on business can be declined only on the ground of issuance of a charge-sheet in a criminal case, when admittedly the petitioner has not yet been convicted. As held by the Supreme Court, in Harendra Sarkar Vs. State of Assam reported in (2008) 9 SCC 204, presumption of innocence is a human right. Such a legal principle cannot be thrown aside under any si ..... X X X X Extracts X X X X X X X X Extracts X X X X
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