Madras High Court
Customs Authorised Signatories vs The Union Of India on 8 August, 2012
Author: M.Jaichandren
Bench: M.Jaichandren
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 8.8.2012
CORAM
THE HON'BLE MR.JUSTICE M.JAICHANDREN
Writ Petition No.2919 of 2012
Customs Authorised Signatories
(Regulation-9) Association
rep. By its Secretary P.Srinivasan
New No.38, (Old No.304),
Linghi Chetty Street
Chennai 600 001 ... petitioner
Vs
1. The Union of India
rep. by its Secretary to Government
Department of Revenue, Ministry of
Finance, New Delhi
2. The Central Board of Excise and Customs
rep. By its Chairman, Department of Revenue
New Delhi
3. The Commissioner of Customs
Customs House, No.60, Rajaji Salai
Chennai 600 001 ... Respondents
This writ petition is filed under Article 226 of the Constitution of India praying for a writ of Certiorari to quash public notice No.152/2011 dated 3.11.2011 in F.No.C9/2/2010 CHA issued by the third respondent.
For petitioner : Mr.Joseph Prabakar
For respondents : Mr.K.Ravi Anantha Padmanabhan
O R D E R
Heard the learned counsel for the petitioner and the learned counsel appearing on behalf of the respondents.
2. At this stage of the hearing of the writ petition, the learned counsels appearing for the parties concerned had placed before this Court the decision of the Supreme Court, in SUNIL KOHLI & ORS Vs. UNION OF INDIA & ORS (2012-TIOL-45-SC-CUS). The relevant portion of the said decision reads as follows:
An analysis of above reproduced clauses makes it clear that the procedure prescribed in the 1984 Regulations and the 2004 Regulations for grant of licence to act as Custom House Agent is substantially similar. In terms of Clause 4 of the 1984 as also the 2004 Regulations, the Commissioner is empowered to invite applications in the month of January every year for grant of the specified number of licences as assessed by him, to act as Custom House Agents. An application for grant of licence to carry the business as Custom House Agent is required to be made in the prescribed from along with the necessary documents. If the Competent Authority is satisfied that the applicant fulfills the prescribed eligibility conditions then he can be considered for grant of licence. However, there was a significant difference in the schemes of the two sets of regulations inasmuch as while the 1984 Regulations postulated grant of temporary licence and prescribed holding of such licence as a condition of eligibility for appearing in the examination conducted for grant of regular licence, the 2004 Regulations do not envisage grant of temporary licence and possession of such licence is not sine qua non for participating in the process of grant of licence under Clause 9 of the 2004 Regulations. Of course, the applicant is required to clear the written as well as oral examinations to be held in terms of Clause 8 of those regulations. At the same time, the language of the opening paragraph of the 2004 Regulations and proviso to Clause 8(1) thereof make it clear that those who have already passed the examination are not required to appear in any further examination. It is also evident from the plain language of the opening paragraph of the 2004 Regulations that the actions already taken under the earlier regulations, that is, the 1984 Regulations were saved. In other words, the examinations held under the 1984 Regulations did not get nullified with the enactment of the 2004 Regulations and the candidates who had qualified the examinations held under the 1984 Regulations are not required to again qualify the examination which may be held under the 2004 Regulations. As a corollary, it must be held that those who had cleared the examinations held between 1995 and 2003 under the 1984 Regulations would be eligible for grant of licence subject to their fulfilling other conditions of eligibility.
Although, the language of Clause 4 of the 1984 Regulations and the 2004 Regulations suggest that every year the Commissioner is required to make an assessment of the number of licences proposed to be granted and then invite applications for grant of such licences, Public Notices dated 20.06.2003 and 24.02.2005 do not contain any indication of such an assessment having been made by the Commissioner before inviting applications for grant of licences. Therefore, the Division Bench of the High Court was not justified in introducing the concept of vacancies in what it thought to be the cadre of Custom House Agents and limit the number of licences to be granted to the candidates, who successfully qualified the examinations conducted under the 1984 regulations.
The clarification issued by the Board vide Circular dated 10.6.2004 and the decision of the Commissioner to dump 563 applications received pursuant to Public Notice dated 20.6.2003 are contrary to the language of proviso to Clause 8 of the 2004 Regulations and the prefatory statement contained in those regulations and, therefore, the same cannot be relied upon for denying licences to the appellants. The matter deserves to be considered from another angle. The Regulations framed by the Board under Section 146(2) of the Customs Act are in the nature of delegated legislation.
The language of that section and other provisions of the Customs Act do not indicate that the Board is empowered to make Regulations with retrospective effect. Therefore, the 2004 Regulations would operate prospectively and would not in any manner affect the eligibility and entitlement of those who had qualified the examination held under the 1984 Regulations for rant of licences to act as Custom House Agents.
The saving clause contained in the opening paragraph of the 2004 Regulations unmistakeably show that while enacting the new Regulations, the Board did not want to adversely impact the right of those who had qualified the examination held under the 1984 Regulations because the nature of the examinations envisaged under the two sets of regulations is substantially similar.
In view of the above, we hold that the learned Single Judge was right in issuing direction for grant of licences to the appellants subject to their fulfilling the conditions specified in Clauses 6 and 9 of the 2004 Regulations and the Division Bench of the High Court committed an error by modifying the order of the learned Single Judge.
In the result, the appeals are allowed, the impugned judgment is set aside and order dated 23.7.2005 passed by the learned Single Judge in Civil Writ Petition Nos.12808-73 of 2004 is restored. The parties are left to bear their own costs."
3. In view of the decision of the Supreme Court cited supra, the learned counsel appearing for the petitioner had submitted that the writ petition ought to be allowed by this Court.
4. The learned counsel appearing for the respondents had not refuted the submission made by the learned counsel appearing for the petitioner.
5. In view of the submissions made by the learned counsels appearing for the parties concerned and in view of the decision of the Supreme Court cited supra, the writ petition is allowed. No costs. Connected M.P.Nos.1 and 2 of 2012 are closed.
lan To:
1. The Union of India rep. By its Secretary to Government Department of Revenue, Ministry of Finance, New Delhi
2. The Central Board of Excise and Customs rep. By its Chairman, Department of Revenue New Delhi
3. The Commissioner of Customs Customs House, No.60, Rajaji Salai Chennai 600 001