IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 21743 of 2011(P) -------------------------------------- PETITIONER: ------------------- GEORGE PALAKUZHY,MANAGING PARTNER, BOONS CARGOES,TC 30/1072(1)RAILWAY HOSPITAL ROAD, PETTAH,THIRUVANANTHAPURAM. BY ADV. SRI.C.S.GOPALAKRISHNAN NAIR. RESPONDENTS: ------------------------ 1. UNION OF INDIA,REPRESENTED BY ITS SECRETARY,DEPARTMENT OF REVENUE,NORTH BLOCK, NEW DELHI-110 001. 2. CHAIRMAN,CENTRAL BOARD OF EXCISE & CUSTOMS,NORTH BLOCK,NEW DELHI-110 001. 3. COMMISSIONER OF CENTRAL EXCISE & CUSTOMS, CENTRAL EXCISE BHAVAN,THIRUVANANTHAPURAM-695 001. 4. COMMISSIONER OF CUSTOMS,CUSTOMS HOUSE, WILLINGTON ISLAND,COCHIN-682 009. R2 & R3 BY SRI.TOJAN J.VATHIKULAM,S.C. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/11/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).NO.21743/2011-P: APPENDIX PETITIONER'S EXHIBITS:- P.1: COPY OF THE CUSTOMS HOUSE AGENTS LICENSING REGULATIONS 2004. P.2: COPY OF THE LICENCE NO.2/97 ISSUED ON 20/02/1997 BY THE R.4. P.3: COPY OF THE RENEWED LICENCE OF EXT.P.2. P.4: COPY OF THE LICENCE RENEWED ON 18/02/2003 BEARING O.179 VALID UPTO 19/02/2007. P.5: COPY OF THE LICENCE NO.1/2007 ISSUED ON 06/02/2007 ISSUED BY THE R.3. P.6: COPY OF THE `F' CARD ISSUED TO THE PETITIONER. P.7: COPY OF THE INTIMATION DTD. 03/03/2011. P.8: COPY OF THE REMINDER DTD. 08/04/2011. P.9: COPY OF THE REMINDER DTD. 23/05/2011. P.10: COPY OF THE LETTER C. NO. VIII/13/50/2004-CHAL DT.D 31/03/2005. P.11: COPY OF THE LETTER DTD. 20/06/2011 SUBMITTED TO THE R.3. P.12: COPY OF THE LETTER C. NO. VIII/48/1/2007 CUS. TECH DTD. 22/06/2011. P.13: COPY OF THE IDENTITY CARD IN FORM`G'ISSUED BY THE ASSISTANT COMMISSIONER AIR CARGO, TRIVANDRUM ON 19/02/2007. P.14: COPY OF THE LETTER C.NO.VIII/48/1/2007 CUS. TECH. DTD. 05/07/2011. P.15: COPY OF THE LICENCE NO.7/1994 ISSUED TO THE PETITIONER. RESPONDENTS' EXHIBITS:- R3.A: COPY OF THE LETTER DTD. 19/04/2011 OF THE COMMISSIONER OF CUSTOMS COCHIN TO THE R.3. R3.B: COPY OF THE REPLY SUBMITTED BY M/S. BOONS CARGO VIDE THEIR LETTER DTD. 27/06/2011. //TRUE COPY// P.A. TO JUDGE Prv. ANTONY DOMINIC, J ....................................................... W.P.(C).21743/2011 .............................................. Dated this the 15th day of November, 2011 JUDGMENT Petitioner claims to the Managing partner of a partnership firm by name “Boons Cargoes”. The firm is engaged in the business of customs clearing and forwarding and has been granted licence as a Custom House Agent, which is periodically renewed, the last of which is Ext.P5 which is valid upto 20.12.2017. In Ext.P5, the current licence, the name of the petitioner and Smt.Rosamma George, his wife, have been entered with an endorsement that it shall be the condition of the licence that the work shall be transacted through one of the said persons. 2. Subsequently, the firm was issued Ext.P12 show cause notice, the relevant portion of which reads thus- “It has been noticed that the said license has been issued consequent to the renewal of old license No.2/1997 issued by the Commissioner of Customs, Cochin-18. In both the CHA licenses, it has been mentioned that the customs house work shall be transacted through one of the following persons viz. 1. Geroge Palakuzhi 2. Rosamma George. As per clause 10 of Custom House Agents licensing Regulations, 1984, the Customs House Agent license is issued to the person who has passed W.P.(C).21743/11 2 the examination referred to in Regulation 9. Further, it has been noticed that Customs House Agent Identity Card in Form F was issued to Shri.George Palakuzhi on 16.2.2007 as per your application dated 15.2.2007. As per Regulation 19 of CHALR, 2004, Form F card is issued to the person who has passed the examination referred in Regulation 8 of CHALR, 2004. Board has clarified that the F card can be issued to all the persons who have passed the Regulation 9 of CHALR, 1984 also. On enquiry, it is revealed that Shri.George Palakuzhi has not passed the above said qualifying examination so far. In view of the above, you are hereby directed to inform why your name should not be deleted from the said CHA License and also directed to inform why the F card issued to you should not be withdrawn. Reply on the matter should be reached to this office on or before 30.6.2011. Otherwise the issue will be decided ex-parte based on the evidence/records available in this office.” 3. Ext.R3(b) produced along with the counter affidavit filed by the respondents is the reply filed by the petitioner stating that he has nothing further to add in the matter. Thereafter, Ext.P14 was issued informing that the Commissioner of Customs has ordered to delete the petitioner's name from Ext.P5 licence and the firm was also requested to produce the original licence and to surrender the F Card issued to the petitioner. It is there upon, this writ petition was filed. 4. Insofar as the direction in Ext.P14 to surrender the F Card W.P.(C).21743/11 3 issued to the petitioner is concerned, the learned counsel for the petitioner fairly concedes that the petitioner, having passed the examination under Regulation 19 of the Custom House Agents licensing Regulations, 1984, is entitled only to G Card and that the F Card was issued erroneously, and that the petitioner is willing to surrender the same. 5. However, the learned counsel takes exception to the direction in Ext.P14 requiring to surrender the licence for deleting the petitioner's name. According to him, the petitioner has passed the examination held under Regulation 19 and his name has been entered in view of Regulation 8(7) of the Regulations and that in the absence of any provision in the Regulations enabling the Commissioner to delete the name of a person from the licence, Ext.P14 is illegal. 6. On the other hand, learned counsel appearing for the respondents contended that only a person who has passed the examination under Regulation 8 of the aforesaid Regulations is entitled to have his name entered in the licence. According to him, admittedly the petitioner has not passed the examination under Regulation 8 and therefore, the Department has committed W.P.(C).21743/11 4 a mistake in entering the name of the petitioner in Ext.P5 licence. Hence Ext.P14 was issued to the petitioner. 7. I have considered the submissions made by both sides. 8. The issue raised by the parties, will have to be decided in the light of the Custom House Agents licensing Regulations, 2004, (hereinafter referred to as 'Regulations') framed by the Central Board of Excise and Customs, in exercise of its powers under Section 146 of the Customs Act, 1962 and supercession of the Regulations issued in 1984. 9. Regulation 3 of the said Regulations provide that no person shall carry on the business as a Customs House Agent unless such person holds a licence granted under the Regulations. Regulation 4 provides for invitation of applications by the Commissioner of Customs and Regulation 5 provides for application for licence. This Regulation being relevant is extracted below for reference:- Application for licence - (1). An application for a licence to act as a Customs House Agent in a Customs Station shall be made in the form of letter to the jurisdictional Commissioner of Customs, containing details as specified in Form A and shall, inter alia, contain W.P.(C).21743/11 5 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, 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, managing director, manager, and (b). the names of director, managing director, manager or the duly authorised employee, who will actually be engaged in the clearance of goods or conveyances through the customs. 10. Regulation 6 prescribes the conditions to be fulfilled by an applicant for licence and Regulation 7 provides for scrutiny of the applications for licence. Regulation 8 provides that an applicant whose application has been made in response to a notification and who satisfies Regulations 5 and 6, shall be required to appear for a written as well as an oral examination to be conducted by the Director General of Inspection. Regulation 8(6) provides for the subjects which are to be included in the examination held under Regulation 8(1). Similarly Regulation 8(7) provides that the Commissioner of Customs shall also satisfy himself whether the applicant, if he is an individual, possesses, or in the case of a firm or company, the persons who shall be actually engaged in the W.P.(C).21743/11 6 work relating to clearance of goods, possess satisfactory knowledge of English and the local language of the Customs Station. 11. Regulation 9 provides for grant of licence and 9(1) provides that the Commissioner of Customs shall on payment of fee, of Rs.5,000/- grant a licence in Form B to an applicant who has passed the examination referred to in Regulation 8. Regulations 8 (1) and 9(1), being relevant, are extracted below for reference:- 8(1).Examination of the applicant - Any applicant whose application is received within the last date specified in the notice or publication, as the case may be, referred to in regulation 4 and who satisfies the requirements of regulations 5 and 6, shall be required to appear for the written as well as oral examination conducted by the Director General of Inspection at specified centers and specified dates for which intimation shall be sent individually in advance before the date of examination - provided that an applicant who has already passed the examination referred to in regulation 8 will not be required to appear for any further examination. 9(1). Grant of licence - The Commissioner of Customs shall on payment of a fee of Rs.5,000/- grant a licence in Form B to an applicant who has passed the examination referred to in regulation 8. W.P.(C).21743/11 7 12. From the above provisions of the Regulations, it is evident that where the applicant for licence is a firm, the name of the partner or duly authorized employee who will be actually engaged in the clearance of the goods, shall be mentioned in the application which is to be submitted in Form A. The person who is so engaged, should satisfy the eligibility conditions specified in regulation 6. The persons whose name/names are so mentioned in the application form made under Regulation 5, are required to appear for the examination held in terms of Regulation 8 and licence is granted to such persons who have successfully passed the examination. These provisions of the regulations therefore, make it clear that only a person who has passed the examination held under Regulation 8, is entitled to have his name mentioned in the licence as the person who will be actually engaged in the clearance of the goods. 13. In this case, it is not the case of the petitioner that he has passed the examination held under Regulation 8. If that be so, his name should not have found a place in the licence and as contended by the respondents, it can only be a mistake. Once it is accepted that the name of the petitioner could not have found a place in the licence, at any time during the currency of the licence, W.P.(C).21743/11 8 respondents are entitled to correct the mistake and the absence of an express provision in the Regulation in behalf, is of no consequence. 14. Learned counsel for the petitioner contended that under Regulation 8(7), Commissioner of Customs shall satisfy that the persons who shall be actually engaged for the work possess satisfactory knowledge of English and the local language of the Customs Station. Relying on this provision, it was contended that in view of the fact that the petitioners has passed the examination held under Regulation 19, the Commissioner was satisfied about his knowledge of the language and that it was therefore that his name was included in the licence. I have already referred to Regulation 8(6) which states that the examination held under Regulation 8(1) may include questions on the subjects mentioned therein. Thereafter in clause 8(7) it is provided that the Commissioner of the Customs “shall also satisfy himself that the applicant” who shall be actually engaged in the whole process satisfactory knowledge of English and the local language. Therefore, Regulation 8(7) is an additional requirement to be satisfied by an applicant for examination held under 8(1) and it does not operate independently as sought to be made out by the W.P.(C).21743/11 9 petitioner. For this reason, this contention also has no merit and is only to be rejected. 15. Therefore, the direction in Ext.P14 requiring the firm “Boons Cargoes” to surrender Ext.P5 licence for deleting the petitioner's name, does not suffer from any illegality warranting interference. 16. As already seen, Ext.P14 also contains a direction requiring the petitioner to surrender his F card, for which the petitioner has no objection. Therefore, it is directed that it will be open to the firm to surrender Ext.P5 licence and the F Card issued to the petitioner. On its surrender of the licence, the licence will be returned deleting the name of the petitioner and since the petitioner has passed the examination held under Regulation 19, G Card will be issued to him without any delay. Subject to the above direction, the writ petition is dismissed. ANTONY DOMINIC, Judge mrcs