Case: The Bombay Custom House Agents Association &amp; Others Vs. The Union of India &amp; Others

1. The First Petitioner is an association of Customs House Agents (CHAs). The Second and Third Petitioners are members of the First Petitioner both of whom passed a written examination conducted under Regulation 9 of the Customs House Agents Licensing Regulations 1984. In these proceedings under Article 226 of the Constitution the Petitioners have sought to impugn (i) The constitutional validity of Regulations 8 and 15 of the Customs House Agents Licensing Regulations 2004; (ii) A notification dated 8 April 2010 issued by the First Respondent; and (iii) A public notice issued on 15 June 2011 by the Commissioner of Customs. Briefly stated, the issue which is raised by the Petitioners is whether candidates who have passed the examination conducted under Regulation 9 of the earlier Regulations of 1984, but were not granted licenses under the earlier regulations can be required under the new Regulations of 2004 to appear for certain additional subjects in order to obtain a licence after the enforcement of the new regulations. According to the Petitioners, a candidate upon passing the examination held under the 1984 Regulations, had a vested right to obtain a licence even though as a matter of fact no licence was issued or granted until the new regulations came into force in 2004. On the other hand, according to the Respondents the mere passing of the examination held under the erstwhile regulations did not confer a vested right to obtain a licence. Once new statutory regulations have been framed in 2004 following the decision of an expert committee which recommended steps to upgrade the skills and competencies of Customs House Agents, an application for a fresh licence must comply with the new regulations insofar as they require inter alia the passing of an examination in certain additional subjects.2. Section 146 of the Customs Act 1962 provides that no person shall carry on business as an agent relating to the entry or departure of a conveyance or the import or export of goods at any customsstation unless such person holds a licence granted in this behalf in accordance with the regulations. Under subsection (2) of Section 146 the Board is empowered to make regulations to carry out the provisions of the Section and the regulations may provide among other things for the qualification of persons who may apply for a licence and qualifications of persons to be employed by a licensee to assist him in his work as an agent and the restrictions and conditions subject to which a licence may be granted. In exercise of the power conferred by Section 146, the Central Board of Excise and Customs notified the Customs House Agents Licensing Regulations 1984. Under clause (c) of Regulation 2 a Customs House Agent was defined to mean a person licensed under the regulations to act as agent for the transaction of any business relating to the entry or departure of conveyances or the import or export of goods at any customs station. Under Regulation 4 the Commissioner was empowered to 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 for clearance work falling in his jurisdiction. Under Regulation 5, if the applicant was either a firm or a company the application was to inter alia contain the name of a duly authorized employee or, as the case may be, a partner, director or manager who would actually be engaged in the clearance of goods or conveyances through the customs. Regulation 6 spelt out the conditions to be fulfilled by each applicant. Under Regulation 8 a temporary licence was required to be granted initially for a period of one year. An examination was provided in Regulation 9 under which either the holder of a temporary licence in the case of an individual and the person or persons who would be actually engaged in the work of clearance on behalf of the firm or the company which held a temporary licence were to qualify in an examination within a period of two years availing of not more than three chances. The subjects of the examination included the following :(a) preparation of various kinds of bills of entry and shipping bills;(b) arrival entry and clearance of vessels;(c) tariff classification and rates of duty;(d) determination of value for assessment;(e) conversion of currency;(f) nature and description of 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 of 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) reimportation and conditions for free reentry;(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) insofar 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.3. Under Regulation 10 the Commissioner was empowered to grant a regular licence to the holder of a temporary licence upon qualification in an examination referred to in Regulation 9 and whose performance was found satisfactory. The licence under Regulation 12 was to be valid for five years and was subject to renewal. Regulation 14 provided for the obligations of a Customs House Agent. Under Regulation 18, a person who was qualified in the examination referred to in Regulation 9 was permitted to engage in the work relating to the clearance of goods through customs on behalf of a firm or company licensed under Regulation 10. Any change in the persons qualified in the examination and actually engaged in the work in the customs station on behalf of the licensee was required to be communicated to the Assistant or Deputy Commissioner of Customs. Under Regulation 20 a licensee was permitted to employ one or more persons to assist him in the work, this being subject to the condition that he shall within six months from the date of appointment pass an examination conducted by the competent authority.4. The earlier regulations of 1984 came to be superseded except as respect things done or omitted to be done before such supersession upon the notification of the Customs House Agents Licensing Regulations 2004 on 23 February 2004. The new regulations of 2004 were framed pursuant to the recommendations of the Kelkar Committee. The Committee had recommended that there should be a review of the technical qualifications of Customs House Agents. The Central Board of Excise and Customs revisited the earlier regulations and while notifying the new regulations of 2004 considered that there was a need to ensure upgradation of levels of competencies and knowledge on the part of CHAs. The new regulations do not provide for a restriction on the number of CHAs since it is considered that market forces should govern the number of proficient and qualified persons required to carry out the job of CHAs commensurate with the volume of import and export cargo. The new regulations of 2004 stipulate in Regulation 3 that no person shall carry on business as a CHA relating to the entry or departure of a conveyance or the import or export of goods at any customs station unless such person holds a licence granted under the Regulations. Regulation 6 stipulates the conditions to be fulfilled by each applicant and is to the following effect:6. Conditions to be fulfilled by the applicantThe applicant referred to in clause (b) of subregulations (2) and (3) of regulation 5, as the case may be, or a person who has passed the examination referred to in regulation 8, shall prove to the satisfaction of the Commissioner of Customs,the applicant, or his authorized employee, is a graduate from a recognized University and possesses a professional degree viz. C.A./ M.B.A. / LL.B. / Diploma in Customs Clearance work from any Institute or University recognized by the Government with a working knowledge of computers and customs procedures, or is a graduate having at least three years experience in transacting Custom House Agent work as a GCard holder, or a person who has passed the examination referred to in regulation 8, or is a retired Groupofficer from the Indian Customs and Central Excise Servicehaving a minimum of ten years experience in Groupthe applicant has financial viability supported by a certificate issued by a Scheduled Bank or such other proof acceptable to the Commissioner of Customs evidencing possession of assets of value of not less that Rs.2 lakhs;(c) the applicant is a citizen of India.5. Regulation 8 provides for an examination which is to be conducted by the Director General of Inspection twice every year. The subjects in which the examination is to be conducted include the subjects which were stipulated in Regulation 9(3) of the earlier regulations. Regulation 8 provides for an examination in certain additional areas, such as for instance, the online filing of electronic shipping bills or bills of entry and Indian Customs and Central Excise Electronic Commerce / Electronic Data Interchange Gateway and Indian Customs Electronic Data Interchange Systems. Under Regulation 9(2) a Customs House Agent who is granted a licence is eligible to work in all customs stations within the country. The obligations of Customs House Agents are stipulated in Regulation 13. Under Regulation 17 a person who has qualified in the examination under Regulation 8 may engage himself in the work relating to the clearance of goods through customs on behalf of a firm or company licensed under Regulation 9. Any change in the person so qualified and actually engaged in the work of a customs station on behalf of a licensee, firm or company is required to be communicated forthwith to the Deputy or Assistant Commissioner of Customs.6. On 8 April 2010 the provisions of Regulation 8 were amended.In Regulation 8, clause (9) came to be introduced to the following effect:(9) Notwithstanding anything contained in these regulations, any person who had passed the examination conducted in regulation 9 of the Customs House Agents Licensing Regulation, 1984, and has not yet been granted license under these regulations, upon declaring successful in a written examination conducted on the following subjects, shall be deemed to have passed the examination referred to in regulation 8 for the purpose of these regulations.(a) The Patents Act, 1970 and Indian Copyright Act, 1957;(b) Central Excise Act, 1944;(c) Export promotion schemes;(d) Procedure on appeal and revision petition;(e) Prevention of Corruption Act, 1988;(f) Online filing of electronic Customs declarations;(g) Narcotic Drugs and Psychotropic Substances Act, 1985; and(h) Foreign Exchange Management Act, 1999.7. Following the amendment a public notice was issued on 15 June 2011 by the Commissioner of Customs, Mumbai inviting applications for the grant of new Customs House Agents licences under the regulations of 2004. The public notice stipulated that where the applicant in question is a proprietary concern, the applicant must be a person who has passed the examination under Regulation 8. Similarly, in the case of a firm or company, the partner, director, manager or duly authorized employee who would actually be engaged in the clearance of goods or conveyance through customs, was required to have passed the examination under Regulation 8.

Reasoning:
13. The mere passing of an examination held under the regulations of 1984 would not render a candidate eligible to obtain a licence under the regulations of 2004. The regulations of 2004 superseded the earlier regulations and stipulated the passing of an examination as provided for in Regulation 8. Amended Regulation 8(9), however, stipulates that a candidate who had passed the examination held under the Regulations of 1984 would be deemed to have passed the examination held under Regulation 8 of the 2004 regulations subject to passing in certain additional subjects. This was a concession which was granted to candidates who had passed the examination held under the earlier regulations and with a view to enabling them to qualify under the new regulations subject to passing in certain additional subjects. The rationale for introducing this requirement has been explained in the affidavit filed on behalf of the Respondents. In the affidavit in reply it has been stated that the Kelkar Committee recommended a review of the technical qualifications of Customs House Agents. The decision of the Central Board of Excise and Customs to require candidates who had passed the earlier examination under the 1984 regulations to qualify in additional subjects was based upon the need to ensure the same competence and knowledge levels among successful applicants under both sets of regulations. The requirement of passing an examination in additional subjects cannot, in our view, be held to be arbitrary or lacking a reasonable nexus with the object sought to be achieved. The object underlying the requirement of passing an examination under Regulation 8 is to ensure that a person who comes to carry on business as a CHA has a basic level of competence and knowledge. Persons who had passed the earlier examination held under the regulations of 1984 had no vested right to obtain a licence. As a matter of fact, such persons who had not obtained licences in their own name by the time that the regulations of 1984 were superseded by the regulations of 2004, would have been required otherwise to fulfill all the requirements of the regulations of 2004. What Regulation 8(9) brings about is to grant a degree of concession to those who had passed the examination which was held under the regulations of 1984 by requiring them to pass an examination only in certain additional subjects. A licence is a privilege to carry on business. An applicant for a licence has a right only to be considered for the grant of a licence. Neither in law or as a matter of first principle does any applicant possess a vested right to the grant of a licence. Hence, when the regulations of 2004 stipulate that in order to obtain a licence in his own name, an applicant must have qualified at the examination as mandated under Regulation 8, there is nothing arbitrary or illegal in imposing such a requirement. Undoubtedly Article 14 of the Constitution prohibits a discrimination which is not based on an intelligible reason or justification. In the present case, it cannot be asserted that the requirement of passing an examination in additional subjects is lacking in an intelligible rationale. The requirement has a reasonable nexus with the object which is sought to be achieved viz. to ensure that CHAs who seek a licence for the first time after the issuance of the regulations of 2004 fulfill the requirement of competencies, knowledge andpursuance of an order of the Delhi High Court certain licences were granted to the Petitioners by the New Delhi Commissionerate. Similarly, as regards the Chennai Customs, it has been submitted that by an order dated 31 March 2010, a Learned Single Judge of the Madras High Court had directed the customs authorities to issue certificates under Regulation 8 of the new regulations of 2004. This order was the subject matter of an appeal before the Division Bench of the Madras High Court which is pending. Subsequently, a contempt petition was taken out forof the order dated 31 March 2010 and three CHA licences were issued subject to the outcome of the appeal filed by the department. Besides this, it has also been stated in the further affidavit dated 11 November 2011 that in Mumbai 40 persons who had qualified under the 1984 regulation appeared pursuant to a special examination conducted by the Customs House on 15 July 2010 of whom 13 were declared to have passed the examination.The view which we have taken in regard to the validity of the regulations is consistent with the view taken by a Division Bench of the Madras High Court in C.V. Karunakaran v. Chairman, Central Board of Excise and Customs 2010 (249) E.L.T. 324 (Mad.). The Division Bench of the Madras High Court presided over by Mr. Justice H.L. Gokhale (as His Lordship then was) held that an applicant who had passed the examination held under the regulations of 1984 had no vested right to obtain a licence. Such an applicant had at best an opportunity to apply for licences which could not be treated as a vested right. A contrary view has been taken in a judgment of a Division Bench of the Gujarat High Court in D.N. Thakkar v. Union of India (Special Leave Application 6152 of 2010 and connected cases) decided on 13 July 2010. Leave has been granted by the Supreme Court to appeal against the judgment of the Gujarat High Court. The Gujarat High Court has held that persons who had cleared the examination which was held under Regulation 9 of the 1984 regulations and were otherwise qualified for the grant of a licence subject to fulfillment of certain conditions fell in one class. Such persons were working in some capacity or other with regular licence holders. According to the judgment, the regulations of 2004 have created two classes of persons viz. those who had obtained licenses prior to the regulations of 2004 and those who on account of the failure of the concerned Commissionerate to notify applications could not obtain licences before the new regulations came into force. In our respectful view the judgment delivered by the Madras High Court commends itself for acceptance. The mere passing of an examination under the 1984 regulations did not confer a vested right to the grant of a licence. Upon the enforcement of the regulations of 2004 every applicant for the grant of a new licence must comply with the regulations which were made in the exercise of the statutory power conferred by Section 146(2). The requirement of passing an examination in additional subjects is based on an intelligible consideration which is to upgrade the skills and competencies of persons who seek to apply for a licence as CHAs. A person who seeks a licence after the enforcement of the Regulation of 2004 must therefore comply with the requirements of the new regulations.