Madhya Pradesh High Court: Vivek Rusia, J. allowed a petition seeking the issue of Custom Broker License and eventually quashed orders of Commissioner of Customs.
Petitioner contended that his application for grant of ‘Custom House Agent License’ under Custom House Agent Regulations, 2004 was rejected by the aforementioned officer. The issue of the said license was based on written and oral examination and both were successfully cleared by the petitioner, further, the relevant amount was paid. He further contended that, meanwhile when results were not declared a new Custom Broker License Regulations, 2013 was enforced. By the said Regulation the nomenclature of ‘Custom House Agents’ was changed to ‘Custom Brokers’. It was clarified that applicants who have already passed under Regulations of 2004 shall not be required to reappear for any further examination and were eligible to apply for License. Petitioner applied for the relevant license before the appropriate authorities in conformity with the law.
The counsel for the petitioner, Alok Barthwal, submitted that application of the said petitioner was rejected by the Deputy Commissioner, Central Excise, on the ground that petitioner did not file an application within a period of two months from the date of declaration of the results. The learned counsel placed reliance on relevant provisions of Regulations, 2013 where it was clarified that the new Regulations doesn’t apply in the petitioner’s case, but the same was rejected by the respondent. After being aggrieved by order of Deputy Commissioner the petitioner submitted his request to Chief Commissioner of the said department, request of the petitioner was turned down again with advice to appeal before the Tribunal with respect to said rejection. Petitioner requested the Chief Commissioner for passing a reasoned and speaking order so that he can prefer an appeal before the Tribunal. Learned counsel further urged that the petitioner applied for grant of Customs House Agent License under Regulation, 2004 in which there was no time limit for submitting the application by an applicant who has passed the examination, hence denial of grant of license on basis of delay is not justified.
Prasanna Prasad, learned counsel for the respondents argued in support of the impugned orders passed by the respondents by submitting that orders have been passed in accordance with the provision of the Regulation, 2014. Therefore, the petitioner is liable to be dismissed. He further highlighted the said provision “Grant of Licence – The Commissioner of Customs shall, on payment of a fee of five thousand rupees grant license in Form B to an applicant who has passed the oral examination within two months of the date of declaration of the said results.”
The petitioner preferred an appeal to CESTAT, New Delhi which was dismissed. The Tribunal held, “that the appeal lies only against the judicial order but not against the order passed on administrative side.”
The Court observed that, no person shall carry on business as an Agent unless he holds a license granted under these Regulations. The Commissioner of Customs invites application for grant of such license in the month of January of every year by means of a notice affixed on the notice board. Individual, Firm or Company can apply for the issuance of license of Customs House Agent subject to fulfillment of the condition given in the Regulation.
The Court held, the respondents are giving a wrong interpretation for those applicants who have passed the examination and did not submit an application for grant of license within a period of two months. Hence, there can’t be a two months period for submitting the application for grant of license. The Court directed that petitioner was only liable to pay the required fees because an application for grant of license was already been submitted under Regulation, 2013. “The Language of Regulation 7 is plain and simple and according to which, the Commissioner of Customs shall grant a license in Form-B within a period of two months on payment of fees by an applicant who has passed the oral examination.” The respondents were directed to issue the license as the order was not maintainable. [Sanjay Kumar Joshi v. CCE, 2019 SCC OnLine MP 803, decided on 01-05-2019]