By TIOL News Service

MUMBAI, DEC 28, 2014 : THE Petitioner is an Association whose members are engaged in the import and export of documents, samples and consignments through CSI Airport and who are "Authorized Couriers" under the provisions of Courier Import and Export (Clearance) Regulations, 1998.

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 passed the examination referred to in Regulation 8/19 of the CHALR, 2004 for filing declarations for clearance of imported or export goods.

By Circular No.21/2011 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. By Office Note dated 28 July 2014, issued by the Deputy Commissioner of Customs, Courier Cell 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.

The crux of the Petition filed by the Couriers Association is to issue directions to the CBEC to make suitable and appropriate amendments to the Courier Regulations, 1998 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.

It is also prayed that a writ, directions or order in the nature of mandamus be issued to Director General of Inspection, Customs & Central Excise 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.

The High Court after considering the submissions made and the Affidavit-in-Reply filed by the Deputy Commissioner of Customs, Customs Broker Section, on behalf of the Respondents observed -

++ The Courier Regulations, 1998, essentially apply to low value consignments.

++ The rationale behind the requirement under the Courier Regulations, 1998, as amended, of making/filing declarations by a 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 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, 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 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 itself-contained and free from the provisions of CHALR, 2004 or CBLR, 2013. Even this request or prayer is based on a vague assertion. In our view, such a prayer in any event cannot be granted by this Court in its jurisdiction under Article 226 of the Constitution.

To the contention 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, the High Court took note of the affidavit-in-reply filed and where it is 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 and clearance of courier consignments is being handled smoothly and expeditiously by Courier companies in compliance with the Regulations. Inasmuch this position had not been disputed by the Petitioner in their Affidavit-in-Rejoinder, the High Court observed that there is no substance in the contentions made by the petitioner and also that the right of the Authorized Courier companies to carry on business had not been abrogated in any manner.

After adverting to the letter dated 18 August 2014 written by the Petitioner to the Chief Commissioner of Customs, Zone III, CSI Airport; the order passed by the Court on 15.09.2014 & the fact 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, the High Court observed that in the Affidavit-in-Reply it is inter alia stated that -

++ 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).

++ 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.

++ 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 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.

Observing that the extracts 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, the High Court held that no case for interference under Article 226 of the Constitution is made out by the Petitioner.

The Petition was dismissed.

(See 2014-TIOL-2392-HC-MUM-CUS)