I am directed to refer to the above subject and to say that references have been made by field formations to the Board seeking clarifications on various provisions of the
.
2. These have been examined by the Board, and necessary clarifications are given at Annexure-I enclosed.
3. These may kindly be brought to the notice of all concerned through appropriate public notices.
4. Hindi version will follow.
| Sl. No. | Issue raised | Comments |
|---|
| Regulation 4 |
| 1 | When the jurisdiction of a CHA is extended to all over India, assessment of requirement of CHAs by Commissioner would not be appropriate. | The Commissioner who accepts the bond under regulation 10 should be the proper officer to assess the requirement of CHAs under his jurisdiction, notwithstanding the fact that the said CHA can eventually operate under any other commissionerate after giving simple intimation in Form ‘C’. |
| Regulation 6 |
| 1 | With reference to the possession of assets not less than Rs. 2 lakhs, should it be made applicable to existing CHAs as well ? | No. It is required only for new CHA licences issued under regulation 9 of CHALR 2004 after 23.2.2004. |
| 2 | Regulation 6 (a) specifies certain professional qualifications such as CA/MBA/LLB to be possessed by the applicant. Can equivalent degrees of degrees mentioned also be considered or specifically the ones mentioned only. | The word used before professional qualifications is ‘namely’, not ‘including’. Therefore, equivalent qualifications are not acceptable. However, if Commissioners feel more professional qualifications should be included, they should send suggestions with justifications. |
| Regulation 8 |
| 1 | Regulation 8 passed persons are eligible as applicants for the licence. Can the applicant be a Regulation 8 passed person from a different commissionerate? | No, because the exam is to be taken only in respect of persons who have applied after the notice is published by the Commissioner of customs for work within his jurisdiction under regulation 4. |
| 2 | Is the time limit of 7 years to pass the exams under sub-regulation (4) of regulation 8 applicable to those who have already exhausted 3 attempts under CHALR 1984 and did not pass (note also that qualification as per CHALR 1984 was graduate only). | Yes, provided he fulfills the conditions of regulation 6. |
| 3 | As per sub-regulation (8) of regulation 8, holders of a regular licence under regulation 9 may authorize one or more of their employees to appear for the examination referred to in sub-regulation (1). Can such authorized persons appear for the exam from the parent commissionerate only [place of grant of licence under regulation 9 (1)] or even from a place where he is authorized to transact business under regulation 9 (2)? | He can appear for the exams from any commissionerate from where he is authorized to transact business. |
| 4 | The time period of 7 years to pass the exam [8 (4)] is too long, and should be reduced to 3 years. | The time period is a conscious decision. |
| 5 | Regulation 8 (5) of CHALR 2004 allows a time period of 2 years to those holding temporary licences under CHALR 1984 to pass the exam. Some CHAs were granted temporary licences under regulation 8 of CHALR 1984 and have already availed 3 chances to qualify for regular licence under CHALR 1984 but have failed to qualify.
(a) Can such CHAs be allowed to avail this period of 2 years as given under sub-regulation (5) of CHALR 2004? | If the results of the 3rd examination are declared before 23.2.2004, they cease to be temporary licence holders if they have failed. As per regulation 8 (5) of CHALR 2004, a person who was legally eligible to hold a temporary licence as of 22.2.2004 can only be allowed further period of 2 (two) years to pass the examination. In other words, in case the results of the 3rd examination were not declared till 23.2.2004, the CHA was legally entitled to continue to hold temporary licence and would, therefore, as per regulation 8 (5) of CHALR 2004, be allowed to pass the examination within a further period of 2 (two) years from 23.2.2004. |
| | (b) Can the validity of such temporary licences be extended for a further period of 2 years or not? | Only in those cases where persons were entitled to hold temporary licence as on 22.2.2004. |
| 6 | Can the provisions of CHALR 1984 relating to licence holders, regulation 9 qualified persons, ‘H’ and ‘G’ card holders be treated at par with holders of the same under CHALR 2004? | They will be governed by the corresponding provisions of CHALR 2004. |
| Regulation 9 |
| 1 | Under Regulation 9 (2), a regular licence holder under regulation 9 (1) shall be eligible to work in all stations subject to intimation in Form ‘C’.
(a) is this benefit applicable only to licence holders under regulation 9 (1) of CHALR 2004, or can also be extended to those holding regular licences under CHALR 1984? | Holders of regular licence under CHALR 1984 will be deemed to be licence holders under the corresponding provisions of regulation 9 (1) of CHALR 2004 and enjoy the benefits under regulation 9 (2). |
| | (b) can persons who have qualified the exam under regulation 9 of CHALR 1984 be exempted from appearing the exam referred to in regulation 8 of CHALR 2004 and be granted licence under regulation 9 (1) of CHALR 2004 directly? | No. Those who have not been granted licence under CHALR 1984 till 23.2.2004 lose their right. They have to meet the qualifications and pass the examinations under regulation 8 of CHALR 2004. |
| 2 | Are CHAs holding regular CHA licence in Form ‘D’ under CHALR 1984 eligible to work at all customs stations within the country subject to intimation in Form ‘C’ or they shall be eligible only when they obtain fresh licence in Form ‘B’ under regulation 9 (1) of CHALR 2004 from the parent commissionerate from where they were issued regular licence under CHALR 1984? | As per reply at 1 (a) under regulation 9 above. |
| 3 | Under the new regulations, the CHA does not have independent existence in different custom houses [ref. Regulation 9 (2) of CHALR 2004]. Although the new regulations provide for intimation in Form ‘C’ only, it is considered prudent to verify the antecedents with reference to new qualifications and validity of the licence from the parent commissionerate. Also, in the absence of bond, security, solvency certificate etc. at each custom house, what is the control that the jurisdictional commissioner has on the CHA operating in his jurisdiction ? Should a CHA operating under Form ‘C’ intimation be given a separate ID for operation in a particular custom house for EDI purposes, identification, keeping track of the CHA etc.? | There is no bar on verification of the particulars given in Form ‘C’. However, these should not be used as a means of delaying or denying the right of the CHAs to operate in that commissionerate.
The bond furnished under regulation 10 is not jurisdiction-specific and covers as a whole his “business as a customs house agent”. Thus for any infraction or action under regulation 20 action can be taken for enforcement of bond and forfeiture of part or whole of security. Regulation 20 (1) (c) specifically states that bond can be invoked for misconduct within the jurisdiction of the said Commissioner of customs or anywhere else. The Commissioner is also empowered to suspend or revoke the licence within his jurisdiction or anywhere else under regulation 20 (2).
It would be advisable for Commissioners to issue separate photo identity cards for operation of a CHA or his employee in a particular customs house. |
| 4 | Are CHAs eligible to work immediately after intimation in Form ‘C’ under regulation 9 (2) of CHALR 2004, or should they be permitted only after necessary verifications are made from where they hold the regular licence ? Also, should such CHAs be issued a separate licence in Form ‘B’ or require only endorsement on their original CHA licence? | The CHAs may be allowed to work within reasonable period of say 30 days after submitting intimation in Form ‘C’ and verifications, if any, should be completed within this period.
It will be advisable to endorse original CHA licence with respect to stations where he has been allowed to operate. The endorsement will be evidence of acceptance of intimation in Form ‘C’. |
| 5 | Should all CHAs holding regular licence in Form ‘D’ under regulation 10 of CHALR 1984 be asked to submit fresh financial viability certificate/proof and bonds, security etc. in terms of regulation 6 and 10 of CHALR 2004, or should this apply only to those who intend to work in other customs stations and also those whose licences are due for renewal after commencement of CHALR 2004? | Only applicable to fresh licences issued under regulation 9 of CHALR 2004 w.e.f. 23.2.2004. |
| Regulation 10 |
| 1 | For existing licences, should bond, security etc. be taken as per CHALR 2004 ? | Already clarified under Point 5 of regulation 9 above. |
| 2 | For licences issued under regulation 10 (2) of CHALR 1984 and renewed for 5 years just before issue of CHALR 2004 –
(a) are they to be renewed for 10 years or till the validity period of the main licence ? | Till the validity period of the main licence. |
| | (b) Is it necessary to issue new licences in Form ‘B’ by canceling the old licences issued in Form “D” under CHALR 1984 ? | No. |
| 3 | With the issue of CHALR 2004, what is the status of licences granted under regulations 10 (1) and 10 (2) of CHALR 1984 ? | Licences issued under regulation 10 (1) of CHALR 1894 would be deemed to be licences issued under regulation 9 (1) of CHALR 2004. Licence granted under regulation 10 (2) of CHALR 1984 will be deemed to be intimations given and accepted under regulation 9 (2) of CHALR 2004. |
| Regulation 13 |
| 1 | Under the corresponding regulation of CHALR 1984 [regulation 14(l)], CHAs were required to ensure that all documents presented by them were in accordance with the order relating thereto. There seems to be no justification for removal of this provision under CHALR 2004. | This can be covered under regulation 13 (n) of CHALR 2004. |
| Regulation 19 |
| 1 | After issue of CHALR 2004, what is the status of ‘G’ and ‘H’ card holders? | They will be deemed to have been given ‘G’ and ‘H’ card under regulation 19 (6) (ii) and 19 (6) (iii) respectively of CHAALR 2004. |
| 2 | For ‘H’ card holders with only 10th class qualification, are they eligible to appear for the examination referred to in regulation 19 (3) of CHALR 2004? | No. They have now to acquire the minimum educational qualification of 10+2 or equivalent. |
| 3 | Under sub-regulation (5) of regulation 19, only persons who have qualified the exams referred to in regulations 8 and 9 are authorized to sign documents. Can regulations 9 and 20 passed persons under CHALR 1984 do the same under CHALR 2004? | Yes. |
| 4 | Under CHALR 2004, regulation 19 specifies 10+2 as the minimum qualification for ‘G’ and ‘H’ cards. What should be the norm adopted for renewing existing ‘G’ and ‘H’ card holders? | They will be continue to be guided by norms in operation when they got the ‘G’ and ‘H’ cards. |
| 5 | Regulation 19 (6) (i) provides for issue of ID card in form ‘F’ to all persons who have passed the regulation 8 exam. Is it required for all existing regulation 9 exam passed persons also? | Yes. |
| 6 | For Form ‘G’, earlier a time limit of 6 months was specified for passing the exam. In the new regulations, there is no time limit. It is suggested that a time limit may be prescribed. | Not necessary. Commissioners should however, ensure that all the four examinations contemplated in regulation 19 (3) are completed within 2 (two) years, as far as possible. |
| Regulation 20 |
| | Since CHALR 2004 does not provide for separate licence, bond, security, etc. for CHAs in each commissionerate, the mode of initiating action under regulation 20 may be made clear, e.g., in the event of misconduct by a CHA at a Form ‘C’ station [regulation 9 (2)], which commissioner will take action? | Already covered by clarification at Point 3 of regulation 9 above. |
| Regulation 24 |
| 1 | Both CHALR 1984 and CHALR 2004 have used the word ‘Association’ and not ‘Associations’ under regulations which appears to imply that the intention towards recognition of only one association. In view of this,
(a) Is it intended and/or is there a provision for recognition of more than one CHA Association at any Customs station? | Legally, there is no bar in having more than one recognized association , though it is advisable to have only 1 (one). Commissioners should ensure that associations recognized represents a significant percentage of CHAs in that station. |
| | (b) Is there a need for guidelines for granting such recognition to CHA Association by Commissioners to be issued by the Board? | Guidelines are under contemplation. |
| 2 | The CHA regulations do not mention that there would be only one association in a custom house. It is therefore desirable that suitable guidelines be issued by the Board prescribing such conditions as maximum number of associations in each station, minimum percentage of membership of the total of CHAs necessary for recognition by the Commissioner, periodicity of elections for electing office bearers, etc. | Guidelines are under contemplation. |
(V. Kezo)
Under Secretary to the Government of India.