Case Law Details
Champion Photostat Industrial Corporation Vs UOI (P&H High Court) –
Section 46 of the Act deals with the submission of Bill of Entry by an importer. There is no condition in the said Section, which prohibits the submission of Bill of Entry by an importer himself or that the importer has to have some educational qualification. It is only Section 146 of the Act, which deals with the clearing with the intervention of the Customs House Agents. Since such agents have to act for others, certain qualifications have been fixed in the regulations framed to regulate their working and also by Public Notice.
The qualification fixed under the Public Notice specifically Clause 2, on which Mr. Ghuman has placed reliance, cannot be extended to an importer, who wishes to import the goods by himself. In fact, Clause 2 also deals with the agents only, but it is pointed out that if such agents are to transact their business on ‘Self’ basis, they should apply for customs passes for their proprietor/partners/directors/employee. Such Clause is applicable only to a person or an organisation, who is a customs house agent.
We find that the stand of the respondents is one, which has caused harassment to the petitioner. It is unwarranted by law. We have given time to Mr. Ghuman to get instructions in respect of untenable stand of the respondents. But still, Mr. Ghuman has insisted upon the stand taken in the written statement.
In view thereof, we set aside the order dated 04.08.2011 (Annexure P-1) and accept the present writ petition with costs of Rs. 50,000/-. The respondents are directed to accept the Bill of Entry and release the goods forthwith. Any demurrage on account of delay of release of goods shall be borne by the respondents themselves. We have been informed by the petitioner that one Shri Lakshya Kumar, who was working as Assistant Commissioner of Customs, Inland Container Depot, Ludhiana – respondent No.4, has not accepted the Bill of Entry on file. The said wholly untenable stand was reiterated by Shri Ranjit Singh, IRS in the reply. Therefore, both the officers namely Shri Lakshya Kumar and Shri Ranjit Singh are directed to pay the cost of Rs.50,000/- i.e. Rs.25,000/- to the petitioner and another sum of Rs. 25,000/- with the High Court Legal Services Committee, in equal shares out of their own funds. Such costs be deposited within a period of two weeks from today. A copy of the order be also sent to the Central Board of Excise & Customs for information and necessary action.
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Date of Decision : 18.11.2011
C.W.P.No. 15377 of 2011
M/s Champion Photostat Industrial Corporation
Versus
Union of India and others
The petitioner invoked the writ jurisdiction of this Court challenging the order dated 04.08.2011 (Annexure P-1), whereby the Bill of Entry lodged by the petitioner has not been accepted under ‘Self’ category, as the petitioner does not satisfy the requirement contained in sub-para (iv) of Para 5 of Public Notice No. 08/2005 dated 12.05.2005.
The petitioner in the course of his business imported a consignment of “Old & Used Digital Multi functional Devices”. Such goods were accompanied with the Overseas Chartered Engineer Certificate dated 20.04.2011. The copies of the invoice dated 18.04.2011 and Overseas Chartered Engineer Certificate dated 20.04.2011 are annexed with the writ petition. The petitioner sought permission of respondent No.4 on 29.06.2011 to file Bill of Entry under the ‘Self’ category along with the requisite documents. The goods sought to be imported by the petitioner are freely importable as per Foreign Trade Policy 2009- 2014.
The entry of goods on importation is governed by Section 46 of the Customs Act, 1962 (for short ‘the Act’), whereas Section 146 of the Act deals with licensing of customs house agents. In terms of Section 146 of the Act, the Central Board of Excise & Customs has framed Regulations called ‘Customs House Agents Licensing Regulations, 2004’. As per Regulation 2 (c), ‘Customs House Agent’ means a person licensed under these 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.
The grievance of the petitioner is that the Customs House Agents Licensing Regulations, 2004 (for short ‘the Regulations’) or the Public Notice issued under the said Regulations, do not deal with an importer, who wishes to submit the Bill of Entry by himself. Therefore, the qualification meant for the agent i.e. Senior School Certificate (SSC) cannot be made applicable in respect of an importer, who wishes to import goods by himself without taking assistance of any Customs House Agent.
In reply, the respondents have relied upon the Public Notice dated 12.05.2005 to contend that conditions in the said Notice in respect of qualification is applicable to a person, who wishes to import the goods by himself. The said reply has been filed on behalf of Shri Ranjit Singh, IRS, Commissioner, Customs (Prev.) Commissionerate, Amritsar.
Before we consider the respective contentions of the parties, the relevant provisions of the Act and the Regulations as well as the Public Notice need to be extracted. The same are as under:
Customs Act, 1962
46. Entry of goods on importation – (1) The importer of any goods, other than goods intended for transit or transshipment, shall make entry thereof by presenting to the proper officer a bill of entry for home consumption or warehousing in the prescribed form;
Provided that if the importer makes and subscribes to a declaration before the proper officer to the effect that he is unable for want of full information to furnish all the particulars of the goods required under this sub-section, the proper officer may, pending the production of such information, permit him, previous to the entry thereof (a) to examine the goods in the presence of an officer of customs, or (b) to deposit the goods in a public warehouses appointed under Section 57 without warehousing the same.
(2) Save as otherwise permitted by the proper officer, a bill of entry shall include all the goods mentioned in the bill of lading or other receipt given by the carrier to the consignor.
(3) A bill of entry under sub-section (1) may be presented at any time after the delivery of the import manifest or import report, as the case may be;
Provided that the Commissioner of Customs may in any special circumstances permit a bill of entry to be presented before the delivery of such report;
Provided further that a bill of entry may be presented even before the delivery of such manifest if the vessel or the aircraft by which the goods have been shipped for importation into India is expected to arrive within thirty days from the date of such presentation.
(4) The importer while presenting a bill of entry shall at the foot thereof make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, relating to the imported goods.
(5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa.
146. Customs house agents to be licensed – (1) No person shall carry on business as an agent relating to the entry of departure of a conveyance or the import or export of goods at any customs station unless such person holds a licence granted in this behalf in accordance with the regulations.
(2) The Board may make regulations for the purpose of carrying out the provisions of this section and, in particular, such regulation may provide for –
(a) the authority by which a licence may be granted under this section and the period of validity of any such licence;
(b) the form of the licence and the fee payable therefore;
(c) the qualifications of persons who may apply for a licence and the qualifications of persons to be employed by a licensee to assist him in his work as an agent;
(d) the restrictions and conditions (including the furnishing of security by the licensee) subject to which a licence may be granted;
(e) the circumstances in which a licence may be suspended or revoked; and
(f) the appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeals shall be filed.
Customs House Agents Licensing Regulations, 2004
2. Definitions – In these regulations, unless the context otherwise requests –
xxx xxx xxx
(c) “Customs House Agent” means a person licensed under these 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;
Public Notice dated 12.05.2005
2. Attention of all the importers/exporters/shipping agents is hereby invited that those who are willing to transact their business i.e. clearance of import/export consignments on ‘Self’ basis should apply for Customs passes for their proprietor/ partners/ directors/ employee who will regularly be visiting Customs stations.
xxx xxx xxx
5. The following documents are required to be submitted along with the application:
Xxx xxx xxx
(iv) Copy of S.S.C. or equivalent Govt. recognized board certificate (such as State Board, CBSE, ICSE Certificate etc.) duly attested by a Gazetted Officer.
Having heard learned counsel for the parties, we find that the stand of the respondents that educational qualification of Secondary School Certificate (SSC) i.e. 10+2 is mandatory even for a importer, who wishes to submit Bill of Entry by himself, is wholly illegally, untenable and without jurisdiction.
Section 46 of the Act deals with the submission of Bill of Entry by an importer. There is no condition in the said Section, which prohibits the submission of Bill of Entry by an importer himself or that the importer has to have some educational qualification. It is only Section 146 of the Act, which deals with the clearing with the intervention of the Customs House Agents. Since such agents have to act for others, certain qualifications have been fixed in the regulations framed to regulate their working and also by Public Notice. The qualification fixed under the Public Notice specifically Clause 2, on which Mr. Ghuman has placed reliance, cannot be extended to an importer, who wishes to import the goods by himself. In fact, Clause 2 also deals with the agents only, but it is pointed out that if such agents are to transact their business on ‘Self’ basis, they should apply for customs passes for their proprietor/partners/directors/employee. Such Clause is applicable only to a person or an organisation, who is a customs house agent.
We find that the stand of the respondents is one, which has caused harassment to the petitioner. It is unwarranted by law. We have given time to Mr. Ghuman to get instructions in respect of untenable stand of the respondents. But still, Mr. Ghuman has insisted upon the stand taken in the written statement.
In view thereof, we set aside the order dated 04.08.2011 (Annexure P-1) and accept the present writ petition with costs of Rs. 50,000/-. The respondents are directed to accept the Bill of Entry and release the goods forthwith. Any demurrage on account of delay of release of goods shall be borne by the respondents themselves. We have been informed by the petitioner that one Shri Lakshya Kumar, who was working as Assistant Commissioner of Customs, Inland Container Depot, Ludhiana – respondent No.4, has not accepted the Bill of Entry on file. The said wholly untenable stand was reiterated by Shri Ranjit Singh, IRS in the reply. Therefore, both the officers namely Shri Lakshya Kumar and Shri Ranjit Singh are directed to pay the cost of Rs. 50,000/- i.e. Rs. 25,000/- to the petitioner and another sum of Rs.25,000/- with the High Court Legal Services Committee, in equal shares out of their own funds. Such costs be deposited within a period of two weeks from today. A copy of the order be also sent to the Central Board of Excise & Customs for information and necessary action.
With the said observations and directions, the present petition is allowed.
A copy of the order be given dasti to the counsel for the parties for immediate compliance.
(HEMANT GUPTA)
JUDGE
Very.good work aagainst ccustom