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TMI Blog2016 (9) TMI 1224X X X X Extracts X X X X X X X X Extracts X X X X ..... ence. 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 licence, the Commissioner of Customs (Seaport-I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 decision in P.Cawasji and Co [2000 (119) ELT 606] and G.P.Jaiswal [2008 (226) ELT 707]. The Tribunal' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the fact that the original licence at Vizag Customs was not renewed and the findings rendered by the Commissioner of Customs, dated 24.07.2006, Mr. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 24.07.2006, granting renewal of licence, should be treated only as an administrative order and that the correctness of the same, cannot be adjudicated before the CESTAT, Chennai, by w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 Customs Act. 13. Reiterating that the order of renewal is only an administrative order, learned counsel for the 1st respondent submitted that the well considered decision of CESTAT, Chennai, does not require any interference in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 permanent pass in Form G prescribed under regulation 20 and has the experience of work relating to clearance of goods through the Customs, for a period of not less than three years in the capacity of such a passholder : Provided that the Commissioner may relax the possession of permanent pass in Form G to one year for reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Customs shall satisfy himself that the requirements of Regulations 10(l)(a) and 10(l)(b) had been fully met by the applicant. (2) Any person, whose application for grant of temporary licence under sub-regulation (1) of regulation 8 is rejected by the Commissioner of Customs may represent to the Chief Commissioner of Customs or Chief Commissioner of Customs and Central Excise, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 (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. (4) The Commissioner shall also satisfy himself whether the licensee in Form B , See Form 48 in Part 5, if he is an individual, possesses, or in the case of a firm or company, the persons who will 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 order passed by the Commissioner. (4) Any person aggrieved by the order of the Commissioner passed under sub-regulation (3) of regulation 10 may represent to [the Chief Commissioner of Customs or Chief Commissioner of Customs and Central Excise, as the case may be against such order within 30 days of the communication of the impugned order. (5) The Chief Comm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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, as to whether, the 1st respondent is entitled to get the licence, issued by the Customs House, Chennai, renewed under Regulation 10(2), irrespective of the fact that the original licence at Vizag Customs was not renewed. 21. While adverting to the material on record, proceedings of CESTAT, Madras and writ proceedings, the Commissioner of Customs (Seaport-Import), has observed that as per CHALR, 1984, more specifically in terms of Regulation 12(2)(a) and Public Notice No.59/94, dated 17.05.1994, the following norms have been prescribed, to be satisfied to measure the performance of the Custom House Agents, whenever an application for renewal of the Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty 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. 24. Here again, it could be deduced from the regulations, the applicant has to satisfy the conditions, set out in the above clauses (a), (b), (c) and (d) of Regulation 10. Thus, reading of Regulation 10 makes it clear that while granting renewal, the applicant has to satisfy the above conditions, besides a pass in the examinatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 certain power conferred on it, the determination of the objective fact and the exercise of the power based thereon are alike matters of an administrative character and are not amenable to the writ of certiorari. ........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." 28. In Moti Miyan v. Commissioner, Indore Division reported in AIR 1960 MP 157, the Madhya Pradesh High Court, at Paragraph 7, held as follows: "7. It will thus be se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith 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 licence, there is no provision to file an appeal and therefore, the Tribunal would not be a competent authority to hear an appeal. Having heard the learned counsel for the parties therein and after considering the relevant provisions of the Act, 1962 and Regulations, governing licence, a learned single Judge of Calcutta High Court held as follows: "I am of the view that the argument of Mr. Banerjee that an appeal lies under Section 129A(1)(a) of the Customs Act against the decision of the Additional Collector of Customs cannot be supported." 31. In A.S.Vasan v. UOI reported in 2009 (238) ELT 217 (Bom.), application of the licencee for renewal has been rejected. Licencee preferred an appeal before the Chief Commissioner, which came to be disposed of, by informing that there is no statuto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Constitution of India. The licencee cannot move the Tribunal, as no adjudication is involved. 33. Regulation 12 of the CHALR, 1984, states that a licence granted under regulation 10 shall be valid for a period of five years, but may be renewed, from time to time in accordance with the procedure provided in sub-regulation (2), which states that the Commissioner of Customs, may, on the application 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 last 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 car ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an appeal. Bare reading of the abovesaid Section may indicate that any decision or order passed by the adjudicating authority, can be appealed to the Tribunal. The Regulations dealing with grant of licence for renewal should be harmoniously read with the provisions of the Customs Act, 1962 and should be given the effect, in conformity with the legislative intent. 37. Provisions of the Customs Act, cannot be read in isolation and the same have to be read harmoniously with the Regulations framed thereunder. Thus, on the principle of harmonious construction and going through the entire Regulations, we are of the considered view that an order, rejecting an application for renewal, is administrative in nature. 38. Perusal of the order of CESTAT, Chennai, dated 14.07.2009, shows that by following the orders, extracted supra, the Tribunal has held that the appeal filed against the order, on the application to renew the licence issued to the Customs House Agent, under the CHALR, 1984 or 2004, as the case may be, is not maintainable. In the light of our discussion and decisions, stated supra, we are not inclined to interfere with the order of the Tribunal. Accordingly, we answer the subst ..... X X X X Extracts X X X X X X X X Extracts X X X X
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