TaxTMI 
TaxTMI 
TaxTMI 
2011 (10) TMI 22
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.... hazardous cargo at Container Freight Stations or, as the case may be, Inland Container Depots. 2. Section 45 of the Customs Act, 1962 provides that all imported goods unloaded in a Customs area, shall remain in the custody of such person as may be approved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or transhipped in accordance with the provisions of Chapter VIII. Section 141(2) provides that imported or export goods may be received, stored, delivered, despatched or otherwise handled in a Customs area in such manner as may be prescribed. The responsibilities of persons engaged in the aforesaid activities shall be such as may be prescribed. In exercise of the power conferred by Subsection (2) of Section 141 and of the general power to make regulations under Section 157 to carry out the purposes of the Act, the Central Board of Excise and Customs framed certain Regulations. These Regulations are called the Handling of Cargo in Customs Areas Regulations, 2009. Regulation 5 prescribes the conditions to be fulfilled by an applicant for custody and handling of imported or export goods in a Customs area. Regulation 5(5) requires an applic....
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....ts are to be duly spelt out by the Commissioner having regard to the safety and safe working conditions of those who work either in a CFS or ICD. The Commissioner is vested with a power to relax the rigors of the regulations, in Regulation 7. 4. The Central Board of Excise and Customs issued a Circular on 10 January 2011. The background for the circular appears to have been an exercise conducted by the Parliamentary Committee on Subordinate Legislation which dealt with the overall safety and security of imported/export goods and of persons working or residing around notified Customs areas. The circular states that the suggestions made by the Parliamentary Committee were accepted and it was decided that no relaxation or exemption from requirements of safety and security of premises shall be allowed by the Commissioners of Customs to the Custodians or to Cargo Service Providers in terms of the provisions of Regulation 7 of the 2009 Regulations. Keeping in view the paramount importance of the overall safety and security of imported/export goods, detailed guidelines are prescribed in order to ensure that suitable arrangements are put in place for safety and security of premises relati....
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.... Commissioner of Customs issued a communication stating that all CFSs who wish to store, handle, despatch or receive hazardous goods should comply with the guidelines as stipulated in the public notice dated 4 February 2011 and with a check list annexed to the communication. Item 1 of the check list is as follows: "(1) Whether the CCSP has demarcated an isolated area for hazardous goods duly separated from other cargo, depending upon classification of its hazardous nature? Whether there are minimum distance of 100 meters between storage place of hazardous cargo and general cargo? YES/NO (If yes, please mention the total area and distance of the demarcated area from general cargo and from administration building, customs office or other offices. Further, if the demarcated area is demarked near the boundary then whether there is any residential area or other offices outside)." As a result of this communication, a minimum distance came to be prescribed of a hundred meters between the storage place of hazardous and general cargo. Time for compliance was extended subsequently on the request of the Association. 7. The Petitioner submitted a representation to the Central Board of Exci....
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.... maintenance of a safe distance of 200 meters between the main office and the Administrative and Customs Building and hazardous cargo. No requirement of segregation between general and hazardous cargo was spelt out. There was no justification, it was urged, for the Commissionerate of Customs to prescribe a segregational requirement between general cargo and hazardous cargo. 9. An affidavit in reply has been filed by the Deputy Commissioner of Customs in these proceedings. The affidavit contains a narration of the statutory framework for the regulation of Container Freight Stations or, as the case may be, Inland Container Depots. The deponent has relied on the Regulations of 2009 and the background leading upto the circular issued by the Central Board of Excise and Customs following the recommendations of the Parliamentary Committee on Subordinate Legislation. The submission which is contained in the affidavit, and which has been reiterated on behalf of the Respondents by Counsel during the course of the hearing, is that the prescription of a safe distance for the segregation of general cargo from hazardous cargo is intra vires the Regulations of 2009 and has been imposed in order ....
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....ffice building. The Deputy Commissioner of Customs introduced a check list which was forwarded together with a communication dated 3 March 2011. The check list required the maintenance of a minimum distance of 100 meters between the place of storage of hazardous cargo and general cargo. The prescription of a distance between hazardous cargo and an office building or, for that matter, between general cargo and hazardous cargo cannot by any means be regarded as arbitrary or ultra vires. As a matter of fact, the Commissioner of Customs, who is the Competent Authority to grant permission under Regulation 5 is duty bound to ensure that all requirements in regard to safety and security are fulfilled. The Regulations which have been framed for the Jawaharlal Nehru Port prescribe requirements for segregation of cargo. For that purpose, goods are classified in accordance with the International Maritime Dangerous Goods Code. Regulation 6(4) of those Regulations prescribe segregation in accordance with IMDG recommendations which are specified in Schedule II of the Regulations. Schedule II contains a table. The note appended to the segregation table provides for situations where no segregation....