2019 (8) TMI 787 - HC - Customs

Court orders respondents to provide Used Dialysis Machines to petitioner free of charge, emphasizing charitable activities.

The Court disposed of the writ petition, directing the respondents to ensure compliance with the communication dated 25.04.2018. This facilitated the ... Levy of rent or demurrage for consignment - purchase of a Used Dialysis Machine with supplies and accessories - Section 125 of Customs Act, 1962 - Rule 6(1)(l) of 'Handling of Cargo Customs Areas Regulations, 2009' - HELD THAT:- A perusal of the said regulations reveals that it has been made by the 'Central Board of Excise and Customs' ['CBEC' for brevity] in exercise of regulation making powers under Section 141(2) read with 147 of said Act. Therefore, said regulations clearly have the character of subordinate legislation. To be noted, it has been averred in the counter affidavit of the Revenue that the aforesaid communication signed on 25.04.2018 was issued under 6(1)(l) of the said Regulations. Therefore, it follows as a sequitur that the said regulations apply to the instant case in all force. Section 2(b), which defines “Customs Cargo Services Provider” says any person responsible for receipt, storage, delivery, dispatch or otherwise handling of imported goods and export goods and includes a custodian as referred to in section 45 of said Act and persons as referred to in sub-section (2) of Section 141 of the said Act - A perusal of Section 2(b), read in conjunction with Sections 45 and 141(2) of said Act leaves no doubt in the mind of this Court that both CFS and the Steamer Agent would qualify as Customs Cargo Services Provider. There is also no disputation that they function under the control of the Customs Department. The import of the petitioner is for a hospital which is being run for economically less privileged strata of the society and it provides medical help by charging only actual cost of basic disposable products alone. In other words, for all practical purposes, writ petitioner is providing free medical treatment with a 50 bedded hospital and in instant case, consignment imported itself is a Used Dialysis Machine. This leaves this Court with the considered view that there are unique and peculiar facts and circumstances in this case. The consignment namely Used Dialysis Machine is directed to be given delivery to the writ petitioner without insisting on demurrage and detention charges even post 23.03.2018. The above direction shall be complied with by the respondents as expeditiously as possible and in any event, with a period of four(4) weeks from the date of receipt of a copy of this order. Petition allowed. Issues Involved:1. Importability of Used Dialysis Machines.2. Confiscation and Redemption of Imported Goods.3. Payment of Demurrage and Detention Charges.4. Implementation of Customs Department Orders.Detailed Analysis:1. Importability of Used Dialysis Machines:The petitioner, a Charitable Trust providing medical treatment to economically weak patients, imported Used Dialysis Machines with supplies and accessories. The import faced issues regarding its legality under customs regulations. The Joint Commissioner of Customs adjudicated the matter and passed an order on 23.03.2018, which included the confiscation of the goods under Section 111(d) of the Customs Act, 1962.2. Confiscation and Redemption of Imported Goods:The adjudication order dated 23.03.2018 included the following:- Confiscation of the Used Dialysis Machines valued at Rs. 19,07,686/- under Section 111(d) of the Customs Act, 1962.- An option to redeem the goods upon payment of a fine amounting to Rs. 1,00,000/- under Section 125(1) of the Customs Act, 1962.- Imposition of a penalty of Rs. 20,000/- on the importer under Section 112(a) of the Customs Act, 1962.The petitioner paid the redemption fine and penalty, and the order attained finality.3. Payment of Demurrage and Detention Charges:After the adjudication, the 3rd respondent issued a communication in April 2018 stating that the custodian shall not charge rent or demurrage for the consignment. Despite this, the petitioner faced demands for demurrage and detention charges from the Container Freight Station (CFS) and the Steamer Agent. The petitioner argued that they could not take delivery of the consignment due to the refusal of the respondents to implement the communication.4. Implementation of Customs Department Orders:The Court noted that the communication issued under the Handling of Cargo Customs Areas Regulations, 2009, should be adhered to by the CFS and Steamer Agent. The Court referred to previous judgments (Isha Exim case and Giridhari case) which established that the Customs Department’s orders must be implemented by the CFS and Steamer Agent. The Court directed the respondents to ensure that the CFS and Steamer Agent implement the communication dated 25.04.2018, allowing the petitioner to take delivery of the consignment without paying demurrage and detention charges.Conclusion:The Court disposed of the writ petition with directions to the respondents to ensure compliance with the communication dated 25.04.2018, facilitating the delivery of the Used Dialysis Machines to the petitioner without additional charges. The order emphasized the unique and charitable nature of the petitioner’s activities, providing medical treatment to the economically disadvantaged. The respondents were instructed to comply within four weeks from the date of receipt of the order.