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Commissioner of Central Excise (Exports) Versus M/s. Aren Shipping Agents (P) Ltd., Customs, Excise & Service Tax Appellate Tribunal

2016 (9) TMI 1224 - MADRAS HIGH COURT

Application for renewal of CHA Chennai license - license issued at Vishakapatnam and their branch license registered with Chennai Customs - expiry of Chennai license - respondent 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 - whether, merely because, the Commissioner of Customs (Seaport-Import), .....

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INGH Versus STATE TRANSPORT APPELLATE TRIBUNAL [1996 (9) TMI 607 - Supreme Court Of India] has been relied upon. It was held that adjudication is not required, while considering a renewal application. Grant or renewal of licence, is administrative in nature. - Section 129 of the Customs Act, 1962, provides for an appeal. Bare reading of the Section may indicate that any decision or order passed by the adjudicating authority, can be appealed to the Tribunal. The Regulations dealing with grant .....

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e CHALR, 1984 or 2004, as the case may be, is not maintainable - no interference required with the order of the Tribunal - appeal dismissed - decided in favor of respondent. - C.M.A. No. 2969 of 2010 M.P.No.1 of 2010 - Dated:- 20-6-2016 - S. Manikumar And D. Krishna Kumar, JJ. For the Appellant : Mr. Sundareswaran For the Respondent : Mr. S. Murugappan JUDGMENT ( Judgement of this Court was made by S. Manikumar, J.) Civil Miscellaneous Appeal is directed against the Final Order No.838 of 2009, d .....

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ired on 16.03.2006. Customs House Agent (In short CHA )/1st respondent has sought for renewal of Chennai licence. 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, d .....

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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-Import), on 24.07.2006, ordered, as hereunder: Applying the ratio laid down by the Hon'ble CESTAT in the Auro Trans Case, and also after analysis of their performance indicators for Chennai, .....

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2 r/w. Notification No.46/2005 Customs (NT), dated 08.06.2005, the said Committee has examined the records of proceedings, in which, the Commissioner of Customs (Seaport Import), Chennai, has passed an Order-in-Original No.5349/2006, dated 24.07.2006 and by observing that the abovesaid order of the Commissioner (Seaport Import), Chennai, dated 24.07.2006, as not proper and deserve to be reviewed, ordered as follows: 3. On examination of the above Order in Original, it appears that the above orde .....

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der regulation 10(2) of CHALR 1984 and renewed for 5 years just before issue of CHALR, 2004, renewal can be done only till the validity period of the main licence. 4. The Committee, therefore, under the provisions of Sec. 129(D)(1) of the Customs Act, 1962, directs the Commissioner of Customs, Chennai to apply to the Customs, Excise and Service Tax Appellate Tribunal, Chennai, for determination of the following points arising out of the impugned order of the Commissioner of Customs (Seaport Impo .....

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ency 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 agains .....

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tio of the above decisions and also following the ratio of the Tribunal's order in Tass Clearing Service (P.) Ltd., v. Commissioner of Customs, Hyderabad 2009 (238) ELT 671, I reject the appeal of the Revenue as not maintainable before the Tribunal. 7. Being aggrieved by the aforesaid order, the Commissioner of Customs (Exports), Chennai, has filed the instant Civil Miscellaneous Appeal, on the following substantial questions of law: (1) Whether the order of CESTAT in the matter of CHALR, 20 .....

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6 = 56 CWN 453 = 2000 (125) ELT 328 (Cal.), Mr.Sundareswaran, learned counsel appearing for the appellant submitted that exercise of power by the Commissioner of Customs (Seaport Import), in the matter of renewal of licence is quasi-judicial in character and therefore, when any decision or order is made by the licencing authority, as an adjudicating authority, such decision or order, can be assailed by way of an appeal, under Section 129(D)(1) of the Customs Act, 1962, to CESTAT, Chennai. He als .....

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strict sense of the term. The question is - did they act quasi-judicially. If they did, certainly, the writ may go. 89. This is the main point debated before us. The difference between an executive and a judicial or a quasi judicial act has 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 mak .....

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ting 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.Sundareswaran, learned counsel for the appellant submit .....

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ord of any proceeding in which a Commissioner of Customs as an adjudicating authority has passed any decision or order under this Act for the purpose of satisfying itself as to the legality or propriety of any such decision or order and may, by order, direct such Commissioner or any other Commissioner to apply to the Appellate Tribunal for the determination of such points arising out of the decision or order as may be specified by the Committee of Chief Commissioners of Customs in its order. (2) .....

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of Customs in his order. (3) The Committee of Chief Commissioners of Customs or the Commissioner of Customs, as the case may be, shall, where it is possible to do so, make order under sub-section (1) or sub -section (2), within a period of six months, but not beyond a period of one year, from the date of the decision or order of the adjudicating authority. (4) Where in pursuance of an order under sub-section (1) or sub -section (2), the adjudicating authority or any officer of customs authorised .....

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ons 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 lic .....

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efore the CESTAT, Chennai, by way of an appeal, under Section 129(D)(4) of the Customs Act. 11. Inviting the attention of this Court to Regulation 22(8) of the Customs House Agents Licensing Regulations (CHALR), 2004, dealing with the procedure for suspending or revoking licence, under Regulation 20, learned counsel for the 1st respondent further submitted that as per the abovesaid Regulations, if any Customs House Agent is aggrieved by any decision or order passed under Regulation 20 or sub-reg .....

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t and order for forfeiture of part or whole of security, or only order forfeiture of part or whole of security, on any of the following grounds, namely :- (a) failure of the Customs House Agent to comply with any of the conditions of the bond executed by him under regulation 10; (b) failure of the Customs House Agent to comply with any of the provisions of these regulations, within the jurisdiction of the said Commissioner of Customs or anywhere else; (c) any misconduct on his part, whether with .....

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nt is pending or contemplated. (3) Where a licence is suspended under sub-regulation (2), notwithstanding the procedure specified under regulation 22, the Commissioner of Customs may, within fifteen days from the date of such suspension, give an opportunity of hearing to the Customs House Agent whose licence is suspended and may pass such order as he deems fit either revoking the suspension or continuing it, as the case may be, within fifteen days from the date of hearing granted to the Customs .....

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pplication 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 .....

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ing authority, has acted as an adjudicating authority, to adjudge an issue, as to whether, the 1st respondent is entitled to get the licence, issued by the Commissionerate, Chennai, renewed under Regulation 10(2), irrespective of the fact that when the original licence, at Vizag Customs has not been renewed, whether the duty to be discharged by him, at the time of considering a renewal application is adjudicatory or administrative, in nature? 15. On facts, the licencing authority has exercised h .....

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Before adverting to the rival submissions, this Court deems it fit to consider the relevant Regulations. Licence has been granted under the Customs House Agents Licensing Regulations (CHALR), 1984. Regulations 4 to 10 reads as follows: 4. Invitation of application.- The Commissioner may invite applications 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 .....

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he 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 throu .....

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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 reasons to be recorded in writing. (b) the applicant has financial viability supported by a certificate issued by a Scheduled Bank or such other proof acceptable to the Commissioner evidencing possession of assets of the value of not less than ₹ 1 lakh in the case of applicants for the grant of licence in respe .....

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g the need for separate compliance of the provisions of clauses (a) and (b) above for such additional Customs Stations. The Commissioner may also waive the need for separate compliance of the requirement of Regulation 11 in such cases : Provided further that in places where there is more than one Commissioner exercising jurisdiction over different Customs Stations and Custom House Agents licensed under the Custom House Agents Licensing Regulations, 1965 have been operating in the said Customs St .....

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verification of the particulars set out in the application and also such other enquiries as he may deem necessary including enquiries about the reliability and financial status of the applicant. 8. Grant of temporary licence.- (1) Any applicant whose application is received within the last date specified in Regulation 4 and who satisfies the requirements of Regulations 5 and 6, shall be permitted to operate as Custom House Agent at the Customs Station for which the application is made initially .....

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ed 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 .....

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er regulation 6 is more than the number of licences to be issued as assessed under regulation 4, the Commissioner may adopt seniority in experience as "G" pass holder of such applicants as the criterion to give precedence to the applicants : Provided that if more than one applicant has the same period of experience, the applicant who is older in age shall get precedence. 9. Examination of the applicant.- (1) The holder of a temporary licence in the case of an individual and the person .....

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cribed examination fee of ₹ 500/- 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. Explanation: A person who qualifies in the written examination, but .....

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f 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); (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 Ex .....

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) 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 and the local language of the Customs Station: Provided that in the case of persons deputed to work exclusively in the docks, knowledge of English wi .....

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receipt of an application in Form C, grant a regular licence in Form D on payment of a fee of ₹ 5000/- to such holder of a temporary licence who qualifies in an examination referred to in Regulation 9 and whose performance 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 of goods or in the .....

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poses of registering himself and his authorised staff; (b) he fulfils the conditions stipulated in clause (b) of Regulation 6 relating to financial soundness and possesses the ability to provide adequate warehousing and transport facilities at the place of clearance of goods and production of evidence relating to availability 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 sep .....

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ired 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 .....

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e the records of any proceedings in which the Commissioner has passed any order under sub-regulation (3) for the purpose of satisfying himself "as to the legality, propriety or correctness of such order and may pass such orders as he may deem fit. No order under this sub-regulation shall be made so as to prejudicially affect any person unless such person is given reasonable opportunity for making a representation and being heard in his defence, if he so desires." (6) No order shall be .....

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t has sought for permission, for renewal of licence issued in Chennai. The Commissioner of Customs, Chennai, as Licencing Authority, has found that the 1st respondent was 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, by Visakapatnam Customs, under Regulation 10(1) of the said Regulations. At this juncture, we place on record that perusal of the licence granted in Che .....

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Services Pvt. Ltd., v. Commissioner of Customs, Chennai reported in ELT 130 (Tribunal), a branch CHA licence issued under Regulation 10(2) of the CHALR, 1984, has to be treated as an independent licence from the main licence issued elsewhere. While considering the application for renewal, the Licencing Authority has been granted personal 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 s .....

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tion 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 .....

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otice that there was no due in respect of any Bond executed or any demand pending against the CHA and that the CHA has also furnished the details of the Service Tax, Income Tax payment particulars, etc. After considering the norms and other particulars, stated supra, the Commissioner of Customs, vide order, dated 24.07.2006, at Paragraph 14, ordered as follows: Applying the ratio laid down by the Hon'ble CESTAT in the Auro Trans Case, and also after analysis of their performance indicators f .....

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request for temporary licence, can only be represented to the Chief Commissioner of Customs or Chief Commissioner of Customs and Central Excise, as the case may be. As per Regulation 10 of CHALR, 1984, the Commissioner of Customs shall grant regular licence. As per Regulation 10(2), Custom House Agents, granted regular licences under Regulation 10, shall be eligible to work in all Customs Stations, subject to fulfilment of the following requirements : (a) the licensee shall make an application .....

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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 .....

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makes it clear that while granting renewal, the applicant has to satisfy the above conditions, besides a pass in the examination. As per Regulation 10(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 othe .....

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ne the records of any proceedings in which the Commissioner has passed any order under regulation 10(3) for the purpose of satisfying himself "as to the legality, propriety or correctness of such order and may pass such orders as he may deem fit. No order under this sub-regulation shall be made so as to prejudicially affect any person unless such person is given a reasonable opportunity for making a representation and being heard in his defence, if he so desires. 26. Though Regulation 10(5) .....

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the Chief Commissioner, at this stage, is suo-motu or otherwise. An administrative power is conferred on the Chief Commissioner to examine and pass appropriate orders. 27. In Province of Bombay v. Khushaldas S.Advani reported in AIR 1950 SC 222, the Hon'ble Apex Court has laid down a test, to find out, as to whether, an authority making an order, under an Act, is required to act as a quasi-judicial authority or in the administrative capacity. At Paragraph 7, the Hon'ble Apex Court held .....

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ermination 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 princ .....

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e distinguishing feature of the two kinds of acts is the mode or manner in which the opinion on the basis of which the act is done by the authority in the exercise of its discretion, is formed. The decision would be quasi-judicial if in reaching that decision the authority is required first to ascertain certain facts by means of evidence and is then free to take such action as it may think fit on the facts so ascertained. 29. In Chingleput Bottlers v. Majestic Bottling Company reported in 1984 ( .....

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or licence'. An applicant for grant of licence has neither a right to such a grant nor a reasonable expectation that such grant would be made in his favour. Dealing with grant of licence under the Tamil Nadu Arrack (Manufacture) Rules, 1981, a privilege, at Paragraph 40, the Hon'ble Apex Court, held as follows: 40. There is nothing in the language of Rule 7 of the Rules to suggest that in refusing to grant the privilege, the Commissioner is obliged to act 'judicially'. The order .....

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a primary objection, on the maintainability of the writ petition, contending that the Tribunal is vested with 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 rene .....

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dditional 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 statutory provision in CHALR, 2004, for filing an appeal. Thereafter, the licencee filed a further appeal to the Tribunal, which held that the order passed by the Commissioner, rejecting renewal, is adminis .....

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ile considering renewal, what has to be considered is, if the performance of the licensee is found to be satisfactory in terms set out under Regulation 11(2). These are the requirements after the licence has been granted. Application for grant of licence and for revocation of that licence are distinct and different. No appeal is provided under Section 11 whereas, an appeal is provided under Regulation 9(4) in those cases, where an application for licence is rejected under regulation 9(3). We are .....

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oms Act, 1962, the learned Judge held that an appeal is provided against the suspension or revocation but not for refusal to renew CHA licence. We are clearly of the opinion that no appeal lies against the order rejecting an application for renewal. In absence of any other remedy it is open to this Court to exercise its extraordinary jurisdiction in case where an application for renewal is rejected. 32. Going through the Regulations, 1984 or 2004, as the case may be, it could be deduced that ord .....

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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 .....

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stances 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. Regulation 12(3) states that the fee for renewal of a licence under sub-regulation (2) shall be ₹ 3,000/-. 34. Renewal of licence is as good as granting a new licence, granted under the provisions of an Act. It has the effect of continuation of licence already .....

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fresh licence and any other conditions, imposing performance of the conditions of licencee, have to be complied with. Procedure set out in CHALR, 2004, does not provide for any adjudication, either for grant of fresh licence or renewal. 35. In the case on hand, while considering the renewal application, the licencing authority has acted as an adjudicating authority. The need, according to him, was, whether the licencee, who had not renewed the licence, issued at Vizag, is entitled to get the lic .....

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