IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL JURISDICTION
WRIT PETITION NO.2700 OF 2009
A.S.Vasan & Sons (Bombay)
A Partnership Firm,
Through its partner-
Mrs.Bindu Unnikrishnan
Having office at
610, Arenja Corner, Sector-17,
Vashi, Navi Mumbai-400 705 ....Petitioner.
v.
1.The Union of India
Through Central Govt. Advocates,
Dedicated Legal Cell,
New Custom House,
Ballard Estate,
Mumbai 400 001.
2. Chief Commissioner of Customs
Mumbai-I, New Custom House,
Ballard Estate,
Mumbai- 400 038
3. Commissioner of Customs (G)
New Custom House,
Ballard Estate,
Mumbai 400 038
4. Customs & Excise, Service Tax
Appellate Tribunal
Through Asstt. Registrar,
3rd, 4th & 5th Floor, Jai Centre,
34, P.D'Mello Road,
Masjid (East), Mumbai ...Respondents.
Mr.Sujay N. Katawala with Mr.Brijesh Pathak and
Mr.U.P.Warunjikar advs. for the Appellant.
Mr.P.S.Jetly with Mr.R.Kumar advs. for the
Respondents.
CORAM : F.I. REBELLO &
J.H.BHATIA,
J.H.BHATIA JJ.
DATE : 29th April, 2009.
JUDGMENT :
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1. 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 time
prescribed. As the application for renewal was not
being decided, the petitioner filed Writ Petition
No.310 of 2008 which came to be disposed off by order
dated January 25, 2008 pursuant to statement made on
behalf of the
respondents that the
renewal application would be decided within two weeks.
petitioner’s
3. Petitioner earlier had made representations,
which were received in the office of the respondents
on 31.12.2007. In the representation dated 28.12.2007
after setting out various contentions, petitioner had
set out as under; “In case any further clarification
is essential, we may please be heard”. Subsequent to
the order passed by this Court in writ petition, the
respondent no.3 passed an order that the licence is
not to be renewed beyond 31.12.2007 and accordingly,
their application in this regard is rejected.
4. Petitioner aggrieved by that order, preferred an
appeal before the Chief Commissioner of Customs. That
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came to be disposed off by communication dated
19.8.2008 whereby the petitioners were informed that
there is no statutory provision under the Customs
House Agents Licensing Regulations, 2004 (Hereinafter
referred to as ‘Regulations’) for filing an appeal.
Petitioner was informed that accordingly, the matter
was referred to the Competent Authority, i.e.,
Commissioner of Customs (G). Petitioner had also
preferred an appeal before the Tribunal (CESTAT). The
Tribunal by its order held that the order passed by
the Commissioner rejecting renewal of licence is
administrative
order
in
ignature and not a
against which an appeal is maintainable
quasi judicial
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 judgment
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of the Supreme Court in Falcon Air Cargo and Travels
(P) Ltd. v. Union of India 2002(140) E.L.T. 8
(Del.).
(Del.) Delhi High Court has noted that non-renewal
and revocations are conceptually and contextually
different. It held that “revocation” is the calling
back of a thing granted or destroying or making void
of some deed that had existence, and the act of
revocation made it void. Renewal of a licence means a
new licence granted by such act. Its effect is to
prevent discontinuance or forfeiture. Renewal comes
at a stage when the period of currency of the licence
and Others v.
is over and its validity is extended. In Gajraj Singh
State Transport Appellate Tribunal and
Others (1997) 1 Supreme Court Cases 650,
650 the Supreme
Court in the case under the Motor Vehicles Act has
been pleased to hold that the renewal of licence means
a new licence granted by way of renewal. It was,
therefore, sought to be contended that application for
renewal being a fresh application and considering
Regulation 9(4), an appeal would lie.
6. Let us, therefore, consider whether an appeal is
maintenable. Under Regulation 5, an application for a
licence to act as a Customs House Agent in a Customs
Station shall be made in Form A and shall, inter alia,
contain the name and the address of the person
applying and the other particulars as set out therein.
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Regulation 9 deals with grant of licence in Form B.
Regulation 9(3) reads as under;
“9(3) The Commissioner of Customs may reject an
application for the grant of licence to act asCustoms 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 undersub-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 thecommunication of such order.”
. Other relevant Regulation is Regulation 11 which
reads as under:
“11. Period of validity of a licence.-
licence. (1) A
licence granted under regulation 9 shall be
valid for a period of ten years from the date of
issue and shall be renewed from time to time in
accordance with the procedure provided in
sub-regulation (2).
(2) The Commissioner of Customs may, on
application made by the licensee before the
expiry of the validity of the licence under
sub-regulation (1), renew the licence for a
further period of ten years from the date of
expiration of the original licence granted under
regulation 9 or of the last renewal of such
licence, as the case may be, if the performance
of the licensee is found to be satisfactory with
reference, inter alia, to the following:-
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(a) quantity or value of cargo cleared by such
licensee conforming to norms as may be specified
by the Commissioner;
(b) absence of instances of any complaints of
misconduct including non-compliance of any of
the obligations specified in regulation 13.
(3) The fee for renewal of a licence
sub-regulation (2) shall be Rs.5,000/-.
7. If we read Regulation 9 with Regulation 11 and
even if an application for renewal is treated as a
fresh licence, the Regulations permitted appeal only
where an application is rejected under Regulation
9(3).
under Regulation
Regulation 11 does not so provide.
9, the Commissioner of Customs
Secondly,
may
reject an application 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. These 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).
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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 that no appeal lies against the order of
the Commissioner rejecting an application for renewal.
It may be mentioned that in case of Customs House
Agent licence, our attention was invited to the
judgment
of Calcutta High Court in M.Dutta Agency
Commissioner of Customs 1998 (101) E.L.T. 581 (Cal.).
(Cal.)
v.
It was contended before Calcutta High Court that the
appeal would lie against the refusal to renew CHA
licence. Considering the language of Section
129A(1)(a) of Customs 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.
9. Having so said, the next question before us is
whether the impugned order is liable to be set aside.
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Apart from various challenges made, the learned
counsel for the petitioners has submitted as under:
1. That the order was passed without giving an
opportunity to the petitioners. The order
visits petitioner with civil consequences.
Once, that is the case, the order is violativeof principles of natural justice and fair play
and the impugned order is liable to be set
aside;
2. It is further submitted that the learned
Commissioner while considering the application
for renewal placed reliance on the original
order passed against Mr.Unnikrishnan, who was
partner of the petitioner firm. Our attention
is invited to the order passed againstUnnikrishnan which was thereafter set aside by
the Tribunal and consequently, the order of the
learned Commissioner suffers fromnon-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 against Unnikrishnan
was in respect of penal proceedings. Unnikrishnan was
a partner of the petitioner’s firm. Mere setting
aside of the order against Unnikrishnan would be of no
consequence as it was in penal proceedings whereas, in
the instant case, what is being considered was an
application for renewal.
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10. We have heard the learned counsel for the
Parties. In the first instance, there can be no
dispute that the order rejecting application has
visited the petitioner with civil consequences. In a
case where an order whether it be administrative or
quasi judicial, visits the party with civil
consequences in absence of any statutory exclusion
under the Regulations, there would be a right to a
hearing. The right to hearing would include right to
a person being heard in person if such a request is
made.
petitioner in
In the instant case, we may point out that the
representation dated 28.12.2007 had
sought for hearing in the circumstances set out
therein. Merely because the regulation expressly does
not provide for a hearing, would not mean that the
petitioner should not be given a hearing. This is all
more so considering that the respondent no.3 has
relied on the original order in the case of
Unnikrishnan, thus, denying the petitioner a fair
opportunity of explaining why the order in
Unnikrishnan ought not to be considered. In our
opinion, therefore, as no notice of hearing was given
to the petitioners by the respondent no.3, the
impugned order is liable to be set aside on that count
alone.
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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
irrespective
on
of
irrelevant matrial.
the fact that whether the
This
order
is
in
Unnikrishnan was in respect of the penal proceedings
or not. Considering that irrelevant material was
considered, it would vitiate the order much as
considering extraneous material. On this count also,
therefore, the impugned order is liable to be set
aside.
12. On behalf of the petitioner, the learned counsel
sought to contend that considering paragraph 1 of the
order of the learned Commissioner and the very fact
that no hearing was given to them, the respondent no.3
ought not to hear the matter. In our opinion, there
is no material before us warranting an order to
transfer the proceedings from the respondent no.3 to
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any other authority. Merely because some observations
are passed cannot result in holding that authority is
biased and against the petitioner. We, therefore,
decline to transfer the proceeding.
13. We make it clear 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 and be uninfluenced by what has
been stated in the earlier order. With the above
observations, present petition can be disposed off.
14. In those
circumstances, petition is made
absolute in terms of prayer clause (a)(1). The
respondent no.3 to dispose off the appeal not later
than 12 weeks from today.
15. Rule made absolute accordingly. No order as to
costs.
( J.H.BHATIA, J.) ( F.I.REBELLO, J.)
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