Bombay High Court
The Couriers Association Of India vs The Union Of India And Ors on 22 December, 2014
Bench: S.C. Dharmadhikari
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.8228 OF 2014
...
The Couriers Association of India
3, Chamunda Heritage,
Kol-Dongri, Andheri (East),
Mumbai - 400 069. ...Petitioner
v/s.
1 The Union of India
Aayakar Bhavan Annexe,
New Marine Lines,
2
Mumbai - 400 020.
Commissioner of Customs
Courier Cell, CSI Airport,
Sahar, Andheri (East)
Mumbai - 400 099.
3 Chief Commissioner of Customs,
Zone III, CSI Airport, Sahar,
Andheri (East), Mumbai - 400 099.
4 Deputy Commissioner of Customs,
Courier Cell, CSI Airport, Sahar,
Andheri (East), Mumbai - 400 099.
5 Assistant Commissioner of Customs,
Customs Broker Section,
New Custom House, Ballard Estate,
Mumbai - 400 038.
6 Central Board of Excise and Customs
Department of Revenue,
Ministry of Finance,
North Block, New Delhi - 110 001.
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7 Director General of Inspection
Customs & Central Excise
D-Shape Building, I.P. Bhavan,
I.P. Estate, New Delhi - 110 002. ...Respondents
...
Mr.Ranjeet Singh for the Petitioner.
Mr.Pradeep S.Jetly for the Respondents.
...
CORAM : S.C.DHARMADHIKARI &
A.A. SAYED, JJ.
RESERVED ON: 3 NOVEMBER 2014
PRONOUNCED ON : 22 DECEMBER 2014
JUDGMENT: ( Per A.A.SAYED, J.)
The above Writ Petition filed under Article 226 of the
Constitution of India seeks the following reliefs :-
a) that a writ, directions or order in the nature of
mandamus be issued to Respondent No.2 directing him
to withdraw the Office Note dated 28.07.2014 and
restraining him from stopping the clearance of the
import and export consignments of the Courier
Companies on the pretext of the authorized signatory of
Courier Companies not holding the 'F' card, 'G' Card or
Kardex Number and not having passed the
examinations referred to in CHALR 2004.
b) that a writ, directions or order in the nature of
mandamus be issued to Respondent No. 6 directing
him to make suitable and appropriate amendments to
the Courier Regulations to make it self contained and
free from the provisions of CHALR 2004 or CBLR 2013
or any other set of Regulations not connected with
Courier Regulations.
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c) that a writ, directions or order in the nature of
mandamus be issued to Respondent No. 7 directing
him to design and conduct tests and examinations
which are appropriate for the testing the adequacy of
knowledge and competence of courier company
employees of Customs Act, Rules and Regulations and
Allied Acts as would be deemed necessary for
clearance of consignments through customs in the
courier mode.
2. The Petitioner is an Association claiming to have 37
registered members engaged in the import and export of
documents, samples and consignments through Chhatrapati Shivaji
International Airport and who are "Authorized Couriers" under the
provisions of Courier Import and Export (Clearance) Regulations,
1998 (hereinafter referred to as the Courier Regulations, 1998). It is
required to be noted that there is a difference in the Regulations
between engaging in transportation of imported or export goods and
their clearance. For registration as transporter of imported and
export goods the person has to approach the Commissioner of
Customs. However, for clearance of imported or export goods, the
Authorized Courier is required to fulfill a condition mentioned
hereinafter. By the Courier Imports and Exports (Clearance)
Amendment Regulations, 2010 vide Customs Notification
No.75/2010 dated 12 August 2010, the Courier Regulations, 1998
were amended to incorporate the requirement of a person who has
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passed the examination referred to in Regulation 8/19 of the
Customs House Agents Licensing Regulations, 2004 (hereinafter
referred to as "CHALR, 2004") for filing declarations for clearance of
imported or export goods. A transition period of six months was
provided for the implementation of the amended provisions of the
Courier Regulations, 1998. It may be stated here that the CHALR,
2004 has now been superseded by Customs Brokers Licensing
Regulations, 2013 (hereinafter referred to as "CBLR, 2013")
containing similar provisions which inter alia include Regulations 6
and 17 which correspond to Regulations 8 and 19 respectively of
CHALR, 2004.
3. By Circular No.21/2011 dated 18 April 2011, the
transition period referred to above was extended upto 31 December
2011 and it was provided that all the Courier company employees
could appear for the examination held under the Regulation 19 of
CHALR, 2004 as a one time measure. The transition period was
further extended to 30 June 2012 by Circular No.05/2012 dated 23
February 2012 and the Courier company employees were permitted
to appear for the examination which was to be held on 25 March
2012. By Office Note dated 28 July 2014, issued by the Deputy
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Commissioner of Customs, Courier Cell (Respondent No.4 herein),
which is also the subject matter of challenge in the present Petition,
it was directed that the Courier companies were required to engage
employees having "F" card or "G" card (issued by CHA section for
persons who have cleared examination under Regulation 8/19 of
CHALR, 2004), failing which no clearance would be permitted to be
effected after 15 August 2014.
4.
The gravamen of Petitioner as set out in the grounds of
the Petition are essentially as follows :-
(I) Office Note/order dated 28-07-2014 issued by
Commissioner of Customs Airport is untenable and
unsustainable in law. Unless the operation of this Office
Note/order is stayed, the clearance of courier
consignments by the members of the Petitioner would
be stopped resulting in loss of business of the
members of the Petitioner.
(II) The Courier Regulations 1998 (as amended in
2010) are deficient to the extent that the said
Regulations do not provide for the authorized Courier
company employees to appear for the examination
which the authorized signatory is expected to pass.
Only one opportunity has been provided to the
employees of the Courier companies to appear for the
examination referred to in Regulation 19 of the CHALR
2004 in terms of CBEC Circulars. In contrast the CHA
employees are granted four attempts to clear the same
examination.
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(III) The employees of the Courier companies have
adequate knowledge of the Customs Rules and
Regulations necessary for the clearance of courier
consignments through Customs and have been
engaged in Customs clearance of courier
consignments for several years. The only aspect is
that they have not passed the examination referred to
in the Courier Regulations which are actually meant for
CHA employees.
(IV) The Courier Regulations 1998 are not self
contained and have to depend on the provisions of
CHALR 2004 which have since been superseded by
CBLR 2013. The examination that the authorized
signatories of the courier companies should be
expected to pass must be designed keeping in view the
jobs and functions and obligations that need to be
fulfilled for customs clearance in the courier mode.
(V) There is no rationale or basis for arbitrarily
subjecting the courier companies operating at Mumbai
Airport to the directions as contained in the Office Note
dated 28.07.2014.
5. An Affidavit-in-Reply has been filed by the Deputy
Commissioner of Customs, Customs Broker Section, on behalf of
the Respondents. In the Reply, it has been inter alia stated as
follows - that under Regulation 13(h) of the Courier Regulations,
1998 as amended, an Authorized Courier is now required to file a
declaration for clearance of imported and export goods through a
person who has passed the examination referred to in Regulation 8
or Regulation 19 of the CHALR, 2004. The Courier Regulations,
1998 do not mandate filing of declaration by Authorized Courier or
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its employee only and that the said declaration can be filed through
a person who has qualified the examination referred to under
Regulation 8 or Regulation 19 of the CHALR, 2004. The terms
"Authorized Courier" and "Custom House Agent" (CHA) are defined
separately under the respective Regulations. The Authorized
Couriers are primarily logistic operators fulfilling the criteria
stipulated in the Courier Regulations, 1998, whereas the
CHA/Customs Broker is an agent of the importer/exporter and
mandated to fulfill obligations under CHALR, 2004/CBLR, 2013.
The Authorized Couriers work as logistic providers capable of door
to door clearance of express cargo. The rationale behind the
requirement of making/filing declaration by someone who has
qualified the examination under Regulations 8/19 of CHALR, 2004
is that the person should have adequate knowledge of overall
customs clearance process. The examination referred to in
CHALR, 2004/CBLR, 2013 contains a set of subjects required for
adequacy of knowledge of customs clearance process. Clearance
through Courier mode is part of overall clearance process and the
provisions of the Customs Act, 1962 are applicable in similar
manner as is applicable for clearance to other modes. In order to
obviate the problem of employees of Authorized Couriers and to
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make them eligible to handle Customs related work pertaining to
imported/export goods under the Courier Regulations, 1998, it was
decided that all employees of the Authorized Couriers having
adequate knowledge of Customs laws and allied Acts would be able
to meet the obligations as stipulated under Regulation 13 of the
Courier Regulations, 1998. Accordingly, the Circular No.21/2011
dated 18-4-2011 was issued in order to give an opportunity to
Authorized Couriers or their employees to qualify the examination
referred to in Regulations 8 or 19 of the CHALR, 2004, and to
enable them to appear in the examination conducted by the Director
General of Inspection or the Commissioner of Customs.
6. The Affidavit-in-Reply further states that the time limit
for appearing in examination for Authorized Couriers/employees
was extended upto 31 December 2011 and subsequently extended
upto 30 June 2012, as one time measure and it was expected that
this time limit would meet the requirement of Authorized Couriers or
its employees to fulfill the obligations as stipulated in Regulation 13
of the Courier Regulations, 1998, as amended. The Central Board
of Excise and Customs has provided an opportunity to Authorized
Couriers/their employees as a trade facilitation measure with a view
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that existing Authorized Couriers/employees may also file the
declarations after qualifying the required examination. An
opportunity has already been given to the Authorized
Couriers/employees to appear and pass the examination as one
time measure and that this facility cannot be left open ended.
Regulation 8 of CHALR, 2004 (now Regulation 6 of CBLR, 2013)
inter alia provides that an applicant who satisfies the requirements
of Regulation 5 (erstwhile Regulation 7 of CHALR, 2004), is eligible
to appear for the Regulation 6 examination. It is thus clear that the
above mentioned Regulations no-where state that only Customs
House Agent employees can appear for Regulation 6 examination
of CBLR, 2013 (erstwhile Regulation 8 of CHALR, 2004). In other
words, the Authorized Couriers or their employees can appear for
Regulation 6 examination of CBLR 2013 (erstwhile Regulation 8 of
CHALR, 2004). The Courier Cell, Mumbai is not insisting for any
Kardex Card issued by Customs House for clearance of import and
export consignments through courier mode and the result of the
prescribed examination is enough for acceptance of the person as
authorized signatory and therefore in such scenario, it is not
relevant whether the kardex cards are issued by the Customs
Broker section or not. The Courier companies are not required to
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take any licence and they can avail services of CHA or hire a
Regulation 6/17 (CBLR, 2013) qualified person to comply with the
provisions of Courier Regulations, 1998.
7. We have heard the learned Counsel and with their
assistance perused the pleadings and material on record.
8. The Courier Regulations, 1998, framed in exercise of
powers conferred by Section 157 of the Customs Act 1962, are
applicable to the assessment and clearance of goods carried by the
"Authorized Couriers" on incoming or outgoing flights or by any
other mode of transport on behalf of a consignee or consignor for a
commercial consideration. Regulation 3(a) of the Courier
Regulations, 1998 defines "Authorized Courier" to mean a person
engaged in the international transportation of the goods on express
door to door delivery basis and is registered in this behalf by a
Commissioner of Customs. The Courier Regulations, 1998, thus
essentially apply to low value consignments. The Petitioner in the
present Petition is mainly aggrieved by the Regulation 13(h) of the
Courier Regulations 1998 inserted by the Courier Imports and
Exports (Clearance) Amendment Regulations, 2010. Under
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Regulation 13(h), Authorized Couriers are required to file
declarations for clearance of imported or export goods through a
person who has passed the examination referred to in Regulation
8/19 of the CHALR, 2004 (now corresponding to Regulation 6/17
respectively of the CBLR, 2013) and who are duly authorized under
section 146 of the Customs Act, 1962. Section 146(1) of the
Customs Act 1962 provides that no person shall carry on business
as an agent relating to 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.
Under the CHALR, 2004, which Regulations are framed in exercise
of powers under sub-section 2 of Section 146 of the Customs Act
1962, a "Customs House Agent" (CHA) has been defined to mean 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. Under Regulation 8 of CHALR 2004 (corresponding to
Regulation 6 of CBLR, 2013) an applicant, who satisfies the
requirements of Regulations 5 & 6, is required to appear for written
as well as oral examination conducted once every year. Regulation
8(6) provides for the syllabus of the examination. Under the extant
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Regulations viz. CBLR, 2013, the requirements to be satisfied to
appear in the examination are provided in Regulation 5, which are
as follows :-
"(a) he is a citizen of India;
(b) he is a person of sound mind;
(c) he is not adjudicated as insolvent;
(d) he has neither been convicted by a competent court for an
offence nor any criminal proceeding is pending against him in
any court of law; and
(e) he has not been penalised for any offence under the Act, the
Central Excise Act, 1944 and the Finance Act, 1994.
(f) an individual applicant or in case the applicant is a firm or
company its partner or director or an authorised
employee who may handle the Customs work shall:
(i) be a graduate from a recognised University, and
(ii) possess a professional degree such as Masters or
equivalent degree in Accounting,Finance or Management,
CA/MBA/LLB or Diploma in Customs Clearance work
from any Institutes or University recognised by the
Government or is having at least two years experience
in transacting Customs Broker work as G-Card holder;
(g) he is a retired Group A officer from the Indian Customs and
Central Excise Services having a minimum of five years
experience in Group 'A' service;
(h) the applicant has financial viability as evidenced by a certificate
issued by a Scheduled Bank or such other proof acceptable to
the Commissioner of Customs in terms of possession of assets
of value of not less than five lakhs rupees:"
Regulation 19 of CHALR, 2004 (corresponding to Regulation 17 of
CBLR, 2013) deals with employment of persons by the Custom
House Agent. Regulations 19(1), (3) & (6) read as follows:
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(1) A Customs House Agent may, having regard to
the volume of business transacted by him, employ
any number of persons to assist him. The minimum
educational qualification of such persons shall be
10+2, or equivalent.
.....
(3) The person referred to in sub-regulation (1)
shall, within four attempts from the date of his
appointment, pass an examination conducted by the
said Deputy Commissioner of Customs or Assistant
Commissioner of Customs or by a Committee of
Officers of Customs, to be appointed by him for the
purpose, and the examination shall be such as to
ascertain the adequacy of knowledge of such
person regarding the provisions of the Act subject to
which goods and baggage are cleared through
customs.
.....
(6) The Deputy Commissioner of Customs or
Assistant Commissioner of Customs, as the case
may be, shall issue a photo-identity card to every
person employed by a Customs House Agent, --
(i) in Form F in case he has passed the
examination referred to in regulation 8;
(ii) in Form G, in case he has passed the
examination referred to in sub-regulation 3;
(iii) in Form H, in case he has not passed the
examination referred to in sub-regulation (3);
and every such person shall, at all times when he
transacts the work at the Customs Station, carry
such card with him and produce it for inspection on
demand by any officer of the Customs Station.
9. The rationale behind the requirement under the Courier
Regulations, 1998, as amended, of making/filing declarations by a
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person who has qualified the examination referred to under
Regulations 8/19 of CHALR, 2004 (corresponding to Regulation
6/17 of CBLR, 2013) is that the said persons have adequate
knowledge of overall customs clearance process. The syllabus of
the examination comprises of a set of subjects required for
adequacy of knowledge of Customs clearance process. The
clearance through the Courier mode is part of overall clearance
process and the provisions of Customs Act, 1962 are applicable in
similar manner as is applicable for clearance from other modes.
The object underlying the requirement of passing the examination
under Regulations 8/19 of CHALR, 2004 (now Regulation 6/17 of
CBLR, 2013) is to ensure that such person has the basic level of
competency and knowledge. Hence, when the Courier Regulations,
1998 as amended, stipulates that such persons filing declarations
for clearance of imported and export goods under the Courier mode
must have qualified at the examination as mandated under
Regulation 8/19 of CHALR 2004 (now Regulation 6/17 of CBLR
2013), there is nothing arbitrary in imposing such a requirement.
The requirement has a reasonable nexus with the object which is
sought to be achieved viz. to ensure that the Authorized Couriers/
employees fulfill the requirement of competency, knowledge and
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skills. Even otherwise, the requirement under the amended Courier
Regulations, 1998, that the Authorized Courier shall file declarations
for clearance of imported or export goods through a person who
has passed the said examination and who is duly authorized under
section 146 of the Customs Act, is entirely a matter of policy and it
would be impermissible for this Court in the exercise of its limited
jurisdiction under Article 226 in interfering with such policy matters.
It is required to be noted that the Petitioner has not challenged the
amendment to the Courier Regulations, 1998 as being ultra-vires
the Customs Act, 1962 or Article 14 and 19(1)(g) of the Constitution
of India. What the Petitioner seeks is a direction to make suitable
and appropriate amendment to the Courier Regulations 1998 to
make it self contained and free from the provisions of CHALR, 2004
or CBLR, 2013. Even this request or prayer is based on a vague
assertion and to be found in ground para 25(E) at page 13 of the
Petition paper book. In our view, such a prayer in any event cannot
be granted by this Court in its jurisdiction under Article 226 of the
Constitution.
10. Apart from the above, it is seen that though several
apprehensions have been expressed by the Petitioner in the
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Petition as regards loss of business and loss of livelihood to their
employees, these apprehensions have been allayed in the Affidavit-
in-Reply filed on behalf of the Respondents. It is specifically stated
in the Reply that the declaration referred to in Regulation 8 of the
Courier Regulations,1998 for clearance of imported or export goods
does not mandate filing of declaration by the Authorized Courier or
his employee only and there is option given to the Authorized
Courier either to file declaration through a person in case he is
qualified under CHALR, 2004 or he can get the documents filed
through CHA. In other words, the Authorized Courier may utilize
services of a person who has qualified the examination under
Regulations 8/19 of the CHALR, 2004, in case he or his employee
has not qualified the examination for filing declarations under the
Courier Regulations, 1998. In the Reply, it has been also averred
that there are about 52 Authorized Couriers companies at Courier
Terminal Sahar, Mumbai and almost all of the above have hired the
services of persons who have passed the examination referred to in
Regulation 6/17 of the CBLR, 2013 (erstwhile Regulation 8/19 of the
CHALR, 2004) and clearance of courier consignments is being
handled smoothly and expeditiously by Courier companies in
compliance with the Regulations. This position has not been
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disputed by the Petitioner in their Affidavit-in-Rejoinder, except to
contend that that has been done under duress and under threat of
stoppage of work. Thus, the right of the Authorized Courier
companies to carry on business has not been abrogated in any
manner. In these circumstances, there is no substance in the
contention on behalf of the Petitioner that the clearance of courier
consignments by members of the Petitioner would be stopped and
result in loss of business or loss of livelihood to their employees.
11. Reference may also be made to the letter dated 18
August 2014, written by the Advocate of the Petitioner to the Chief
Commissioner of Customs, Zone III, CSI Airport, (annexed at Page
45 of the Petition as Exh.I). It has been stated in paragraphs 6 and
7 of the said letter as follows :-
"6. It is not the contention of the Courier companies that
their employees should not be tested for competence
and adequacy of knowledge of Customs and other
relevant laws. In fact the system of testing and issuing
of suitable passes by the Customs Courier
Administration is a step which would be welcomed
whole heartedly by the Courier companies.
7. The only point which is being sought to be made is that
The Courier Regulations should not contain any
provisions for testing and qualification from the CHA
regulations. Just as the CHA regulations is a self
contained set of Regulations it would be advisable to
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have self contained set of Courier Regulations
containing provisions for the educational qualifications,
tests and examinations and system of passes
commensurate with the nature and requirements of the
jobs that the Courier Company employees are likely to
perform."
12. On 15 September 2014, after hearing Counsel for the
parties, this Court had passed the following order:
"1. After the matter was argued for sometime and
when we showed disinclination to interfere with a pure
policy decision of prescribing examination for the
courier interested undertaking clearance of the imported
goods, the learned counsel for the Petitioner on
instructions states that the members of the Petitioner
are ready and willing to appear for the prescribed
examination but presently the Respondents have not
shown any flexibility meaning thereby further chance
and opportunity may not be given.
2. We have therefore requested Mr.Jetly to take
limited instructions from the Respondents and
particularly as to whether they are ready and willing to
accommodate the Petitioner by giving an opportunity to
them to appear for the examination in terms of
Regulation 5 of the regulations, namely, Courier Imports
and Exports (Clearance) Regulations, 1998 and as
amended by the Courier Imports and Exports
(Clearance) Amendment Regulations, 2010.
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3. To enable Mr.Jetly to take these instructions
stand over to 29th September, 2014."
13. From the above, it would be evident that the only
grievance of the Petitioner which really remained was as regards
opportunity to the members of the Petitioner and their employees to
appear for the examination as contemplated under Regulation 8/19
of the CHALR, 2004 (now Regulation 6/17 of CBLR, 2013). In
paras 8,10,16 & 17 of the Affidavit-in-Reply on behalf of the
Respondent, it is stated as follows:
"8. With reference to para 7 of the Petition, I say that as per
Circular No.21/2011 dated 18-4-2011 issued by the
Central Board of Excise and Customs examination was
conducted on 25-03-2012. I say that a total of 2185
candidates appeared in the written examination. 83
candidates of courier employee appeared for the written
test examination. Results were declared on 8-03-2013.
Total 520 candidates appeared in oral examination.
Total 10 courier employees qualified for the same and 7
courier employees were declared successful as per
Public Notice No.82/2012-13 dated 8-03-2013.
10. With reference to para 10 of the Petition, I say that in
the amended provision of the Courier Import & Export
(Clearance) Regulations, 1998, it has not been
stipulated that a person, possessing the required
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qualification, should be a regular employee of the
Authorized Courier. Therefore, subsequent to the office
note, most of the courier companies working at Courier
Terminal have either engaged a CHA firm or have hired
such persons who have passed the required
examination or employed the persons possessing the
said qualification. Moreover, it is clear that the
employees of courier companies can appear for the
Regulation 6 examination of the Customs Brokers
Licensing Regulations, 2013 (erstwhile Regulation 8 of
the CHALR, 2004).
16. With reference to para 19 of the Petition, I say that
Courier employee can appear for examination under
Regulation 8 of CHALR, 2004 ( now Regulation 6 of
CBLR, 2013 examination) as per eligibility stated in
Regulation 7 of CHALR, 2004 (now Regulation 5 of
CBLR, 2013). The maximum time provided to pass
examination written as well as oral is within 7 years
from the date of original application as per regulation
6(6) of the CBLR 2013.
17. With reference to para 20 and 21, I say that there are
more than 6000 persons in Mumbai who have qualified
regulation 17 of CBLR 2013 (erstwhile regulation 19 of
the CHALR 2004) and this number is more than
sufficient for handling the work of approximately 50
Courier companies. Further, Courier Cell, Mumbai is
not insisting for any Kardex Card issued by Custom
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House for clearance of import and export consignments
through courier mode. The result of the prescribed
examination is enough for acceptance of the person as
authorized signatory. In such a scenario, it is not
relevant whether the Kardex cards are being issued by
Customs Broker Section or not.
(emphasis supplied)
Thus, the paragraphs extracted above clearly dispel most of the
grievances of the Petitioner, including their grievance as regards
further opportunity to the Authorized Courier companies or their
employees to appear in the examination so long as they meet the
eligibility criteria reproduced in para 8 above.
14. In the light of the aforesaid discussion, no case for
interference under Article 226 of the Constitution is made out by the
Petitioner. The Petition shall accordingly stand dismissed. No order
as to costs.
(A.A. SAYED, J.) (S.C.DHARMADHIKARI, J.)
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