TMI Blog2009 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... ered, it would vitiate the order much as considering extraneous material. – Held and directed that the respondent no. 3 before proceeding to hear and dispose off the matter to give an opportunity to the petitioner as they had sought such an opportunity. - 2700 of 2009 - - - Dated:- 29-4-2009 - F.I. Rebello and J.H. Bhatia, JJ. S/Shri Sujay N. Kantawala, with Brijesh Pathak and U.P. Warunjikar, Advocates, for the Appellant. S/Shri P.S. Jetly, with R. Kumar, Advocates, for the Respondent. [Judgment].- Rule. By consent heard forthwith. 2. Petitioner was Licensed Customs House Agent (CHA). The CHA Licence No.11/483 issued to the petitioner expired on 31-12-2007. Petitioner applied for renewal of the said licence within the t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icence is administrative in nature and not a quasi judicial order against which an appeal is maintainable before the Tribunal and accordingly, dismissed the appeal. Petitioners have thereafter come before this Court by way of writ petition impugning the order of the Commissioner. 5. In the first instance, it is submitted on behalf of the petitioners by the learned counsel that under the Regulations, an appeal would be maintainable before the Chief Commissioner of Customs or in alternative, an appeal considering the provisions of Regulation 22(8) could be filed before the CESTAT. It is submitted that the application for renewal for all purposes is a fresh application and accordingly, an appeal would lie. Reliance was placed on the judgme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the grant of licence to act as Customs House Agent if the applicant is involved in fraud or forgery, or any criminal proceedings are pending before any court of law against him or he has been convicted in any court of law." Regulation 9(4) is relevant. It reads as under: "9(4) Any applicant aggrieved by the order of the Commissioner of Customs passed under sub-regulation (3) may appeal to the Chief Commissioner of Customs or Chief Commissioner of Customs and Central Excise, as the case may be, within a period of thirty days from the communication of such order." Other relevant Regulation is Regulation 11 which reads as under: "11. Period of validity of a licence. - (1) A licence granted under regulation 9 shall be valid for a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se are, therefore, the considerations for the grant of a new licence based on the first application for CHA licence. 8. On the other hand, so far as Regulation 11(2) is concerned, it provides for renewal and while 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, therefore, clearly of the opinion ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder passed against Mr. Unnikrishnan, who was partner of the petitioner firm. Our attention is invited to the order passed against Unnikrishnan which was thereafter set aside by the Tribunal and consequently, the order of the learned Commissioner suffers from non-application of mind. On this count also, it is submitted that the order should be set aside. On the other hand, on behalf of the respondents, the learned counsel submits that there is no statutory right to be heard under the Regulation and in those cases, where a party has to be heard in person, the Regulations have so provided. It is, therefore, submitted that the question of giving personal hearing would not arise in the matter. It is further submitted that the order passed aga ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that count alone. 11. Considering the arguments in the instant case, we find that the Tribunal has relied on the order passed against C.R. Unnikrishnan and has quoted extensively from the said order. After quoting from the said order, the learned Commissioner proceeded on the footings that Unnikrishnan as a partner of the CHA firm was involved in the export fraud. Admittedly, in proceedings taken out by Unnikrishnan against the said order, it was set aside. Once the Tribunal has proceeded to rely upon an order which was set aside that by itself would disclose non-application of mind or relying on irrelevant material. This is irrespective of the fact that whether the order in Unnikrishnan was in respect of the penal proceedings or not. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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