Custom House Agents - Old Regulations or New? Litigation and Clarifications
THERE used to be Customs House Agents Licencing Regulations, 1984 which were superseded by the Customs House Agents Licencing Regulations, 2004. Now the question arose as to whether those who qualified in the examination under the old regulations can be given a licence under the new regulations without again clearing the examination. The CBEC in Circular No. 42/2004-Cus dated 10.06.2004 clarified that those who have not been granted licence under CHALR 1984 till 23-2-2004 lose their right. They have to meet the qualifications and pass the examinations under regulation 8 of CHALR 2004.
By Notification No. 30 of 2010-Customs (N.T.) dated 8-4-2010, Board framed the Customs House Agents Licensing (Amendment) Regulations, 2010, amending various regulations in the CHALR, 2004. The (Amendment) Regulations contemplated a situation whereby the candidates successful under Regulation 9 of CHALR, 1984, are still required to appear in the examination of specific subjects as specified, while candidates successful in the examination conducted under CHALR, 2004 as well as the persons who had been granted licences under CHALR, 1984 are not required to go through the same.
On the same day, Board also issued a Circular No. 9/2010 – Cus dated 08.04.2010 stipulating that those who had passed the earlier examination can be granted a licence if they pass an examination in some additional papers on subjects like Patents Act, Copy Right Act, Central Excise Act, etc.
But the Gujarat High Court quashed and set aside the Customs House Agents Licensing (Amendment) Regulations, 2010 issued vide Notification No. 30/2010 dated 8-4-2010, insofar as the same impose a condition upon those persons who had passed the examination conducted under Regulation 9 of the Customs House Agents Licensing Regulations, 1984 and have not been granted license under the said Regulations, to clear the examination in additional subjects. []
The Board took the matter in appeal to the Supreme Court with the question “whether high court was correct in quashing the Customs House Agents Licensing (Amendment) Regulations, 2010”
The Supreme Court by an order dated 19 September 2011 [] noted that in some Custom Houses CHA licenses under Regulation 9 had been issued to the candidates in terms of the old regulations even after the new regulations had come into force in February, 2004. And so, the Supreme Court declined to stay the operation of the Gujarat High Court order.
Some other High Courts have also followed the Gujarat way.
Now what is the situation? Irrespective of what the Board thinks, the situation is that those who have qualified under the 1984 Regulations are eligible for the licence under the 2004 Regulations, without clearing any further examination.
What does the Board think? In Circular No. 38/2011-Customs, dated August 24, 2011, Board clarified:-
The intention of allowing these applicants to appear in the examination for additional subjects such as
++ The Patents Act, 1970 and Copyright Act; 1957
++ Central Excise Act, 1944
++ Export promotion schemes,
++ Procedure on appeal and revision petition,
++ Prevention of Corruption Act, 1988,
++ Online filing of electronic Customs declarations,
++ Narcotic Drugs and Psychotropic Substances Act, 1985 and
++ Foreign Exchange Management Act, 1999
was to ensure that they have working knowledge in these subjects as prescribed under CHALR, 2004.
Board has decided that all such applicants who had already passed the examination held under regulation 9 of CHALR, 1984 but have not been granted licence and are seeking qualification in additional subjects shall be allowed to clear the examination by 31.12.2012 irrespective of number of chances to become eligible for grant of CHA licence in terms of Regulation 9 of CHALR, 2004.
But this is Contempt! Board's latest Circular is clearly against the directions of the Gujarat High Court. The High Court order was delivered on 1 st October 2010 and the Board had appealed against that order to the Supreme Court. While the matter was pending in the Supreme Court, Board had issued this circular asking the already passed candidates to pass another examination, totally against the High Court order.
Board might not have any intention of contempt, but perhaps the person who issued the circular was not aware of the High Court order and the pending appeal in the Supreme Court!
A Little History: The institution of Customs House Agent seems to be as old as the Customs Act itself. Section 22 of the Customs Act 1878 had a provision to issue licences for agents. In 1955, the 1878 Act was amended to provide for a licence to be issued under Rules to be framed. And so the custom House Agents Licencing Rules 1960 were issued, which were promptly challenged in the Supreme Court. One of the grounds was the requirement of passing an examination in procedures on refund, appeals and revision under the Customs Act. The petitioners urged that these are matters for the owners and Customs officers and not for the agents. Incidentally, the 1955 Rules prescribed a renewal fee of Rs. 50/- while earlier it was only 50 ps. The Supreme Court struck down this Rs. 50 fee!