COMMISSIONER OF CUSTOMS Vs. GANNON DUNKERLEY COMPANY

JUDGEMENT

(1.) The respondents herein was having a CHA License valid upto 31st December, 2006. It appears from the record that they have appointed one Shri girish P. Manjeshwar, who was a Regulation 9 Pass holder (now Regulation 8 as per chalr, 2004). The said employee tendered his resignation. The respondents by letter dated 10th August, 2004 accepted the resignation with effect from 14th August, 2004 and relieved him from the services of the company as per the terms and conditions of the appointment letter. As : he respondents did not have a Regulation 9 pass holder they surrendered his pass on 18th November, 2004 as though uiey had made attempts to get a qualified person they were not in a position to get one. The Commissioner of Customs (General) vide notice No. 116/06 dated 8th August, 2006 made the license of the respondents inoperative. The respondents vide their letter dated 17th August, 2006 wrote to the Commissioner of Customs (General) that they were shortly employing a qualified person and would continue to work as cha and requested to condone the delay. They were informed by letter dated 30th August, 2006 that their request to continue the license as CHA cannot be considered in terms of the provisions of Regulation 15 (2) of the chalr, 2004. On 1st September, 2006 the respondents intimated the Commissioner of customs that they have appointed Shri S. Subhash, a Rule 9 qualified person under chalr, 2004 and he would join in the first week of October, 2006. Various other representations were made. By communication of 29th March, 2007 the respondents requested the Commissioner of Customs (General) to pass an appealable order after granting an opportunity of personal hearing to them. That was granted and an order came to be passed on 21st May, 2007 whereby it was held that the order to make inoperative the CHS license was absolutely necessary. Aggrieved the respondents preferred an Appeal.

(2.) The learned Tribunal on consideration of the provisions of the Regulations and more specifically Regulation 15 (2) of the CHALR, 2004, held that it would be applicable only in the case when there is a change of constitution of the firm or company. The Proviso to Rule 15 (2) of the CHALR, 2004 and the time limit of two years prescribed therein is applicable only in the case of demise or retirement of the person and not in the case of resignation, which is the case here. It was further held that the proviso to Regulation 15 (2) is not at all applicable in the instant case since the same is applicable only when there is a "g Card" holder of the Company and for all the aforesaid reasons it held that there is no provision under CHALR 2004 to make the VCHA license inoperative. In the light of that the impugned order dated 21st may, 2007 was set aside and the Appeal was allowed by order dated 3rd August, 2007.

(3.) The Revenue has preferred this Appeal on the following question:-