TaxTMI 
TaxTMI 
2014 (4) TMI 101
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.... heard together and are being disposed of by a common order. 2. The question that arises for consideration is whether the CELEBI is entitled to charge demurrage/detention charges for the period the goods were detained by the customs authorities and for which the customs authorities have issued a certificate advising CELEBI to waive off demurrage charges in terms of Section 6(1)(l) of the Handling of Cargo under Customs Area Regulations, 2009 (hereinafter referred to as the 'HCCAR")? To answer the above question what needs to be determined is whether CELEBI is bound by the HCCAR or by the Policy for Waiver of Demurrage Charges notified by the Airports Authority of India in 1999 (hereinafter referred to as the Policy for Waiver) and further whether the two can be harmoniously construed? 3. For the purposes of clarity and for understanding the controversy we may briefly refer to the factual matrix of both the cases. WP (C) NO. 7438/2012 4. The petitioner in the present petition was engaged in the business of trading of mobile phones. The petitioner imported mobile phones "Made in China" of different brands of Chinese origin through various bills of entries dated 06.04.2012. On....
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....d by one Mr. Anand Prasad working as Cargo Agent in CELEBI (the custodian). The superdginama records that "I shall not claim any storage charges for the safe custody of the goods". 10. The customs authorities confiscated the said goods under Section 111 of the Custom Act under a seizure memo dated 11.07.2012 on the ground of under valuation. The adjudicating authority by order dated 19.07.2012 confirmed the duty of Rs. 10,48,803/- and imposed penalty of Rs. 2,00,000/- on the partner of the petitioner firm. The petitioner was given an option to redeem the goods on payment of redemption fine of Rs. 5,00,000/-. Penalty of Rs. 2,00,000/- was also imposed on the customs house agent of the petitioner firm. 11. The petitioner appealed against the said order before Commissioner of Customs (Appeals). The Commissioner of Customs (Appeals) by order dated 25.09.2012 reduced the redemption fine to Rs. 75,000/- and penalty to Rs. 35,000/-. The petitioner accepted the order of the Commissioner of Customs (Appeals) and deposited the penalty as well as the redemption fine on 01.12.2012. The petitioner further sought to deposit the customs duty, however, it is contended that the Customs Authoritie....
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....harges. 17. Learned counsel for the petitioner has contented that in similar circumstances, CELEBI and AAI have waived of the charges where customs authorities have so directed in terms of the regulations. Learned Counsel for the respondent CELEBI has contended that the waiver has been granted on case to case basis. 18. In WP(C) No. 2200/2013, respondent customs authorities filed an affidavit and stated that DIAL was appointed as custodian of import/export cargo in place of AAI vide customs public notice dated 02.05.2006. DIAL entrusted CELEBI the custody of the said area. The respondent, customs authorities, further stated that DIAL and CELEBI were allowed to carry on cargo handling service on a specific undertaking that they would abide by the conditions of HCCAR, 2009. The affidavit further states as under:- "10. That it is evident from the facts and legal provisions sated above that Respondent No.4 (CELEBI) has acted contrary to the provisions of law in as much as demurrage incurred for the period of detention/seizure by Customs should have been waived off by respondent No.4 as directed by the answering respondent vide letter C. No.VIII/SIIB/CUS/I&G/40/2012 dated 14.3.2013. ....
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.... customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer. (3) Notwithstanding anything contained in any law for the time being in force, if any imported goods are pilfered after unloading thereof in a customs area while in the custody of a person referred to in sub-section (1), that person shall be liable to pay duty on such goods at the rate prevailing on the date of delivery of an import manifest or, as the case may be, an import report to the proper officer under section 30 for the arrival of the conveyance in which the said goods were carried. 24. Section 45 of the Customs Act, 1962 stipulates that all imported goods unloaded in the customs area shall remain in the custody of a person approved by the Commissioner of Customs till the time they are cleared for home consumption or warehoused or transhipped in accordance with Chapter VIII which deals with goods in transit. The person to whom the custody of such goods is handed over by the Commissioner of Customs is liable to keep record of the same and keep the same in the customs area and not to permit removal of the same except with prior permission and in case o....
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....uthorities on an application of the importer, if satisfied, that the goods entered for home consumption cannot be cleared within a reasonable time, permit the importer to deposit the goods in a public area or a private warehouse for a specified period. The period may be extended from time to time by the Commissioner of Customs. Section 49 further stipulates that goods so warehoused on an application by the importer shall not be deemed to be warehoused goods for the purposes of this Act and provisions of Chapter IX shall not apply. Section 57 lays down that the Assistant Commissioner/Deputy Commission of Customs may appoint public warehouses wherein dutiable goods may be deposited. Section 58 empowers the Assistant/Deputy Commissioner of Customs to licence private warehouses wherein dutiable goods imported may be deposited where the facilities for deposit in a public warehouse are not available. Section 59 to 73 of Chapter IX deal with the general provisions under which an importer may warehouse the imported goods and stipulates the period for which the goods may be warehoused and general conditions for removal / clearance of the goods. 28. Section 141 of the Customs Act, 1962 lays....
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....arehouses and cargo complex at the airports for storage and processing of the goods at the terminals. 33. Under the provision of the AAI Act, AAI is empowered to make lease of premises of Airport to carry out some of functions under the Act. AAI, for overall public interest granted some of its functions, being the functions of operating, maintaining, developing, designing, construction, upgradation, modernisation, finances and managing the airport to the Delhi International Airport Private Limited, (DIAL for short) under the operation, management and developing agreements (OMDA) dated 4.4.2006 which agreement further empowers DIAL to sub contract any activity covered by OMDA. 34. The Government of India formulated Airports Economic Regulatory Authority of India (AERA for short) under the Airport Economic Regulatory Authority of India Act, 2008. The AERA was given the responsibility of providing and fixing demurrage charges in respect of storage, processing and handling of Cargo at the terminal. 35. By concession agreement dated 24.8.2009, CELEBI has been grated sub-contract by DIAL for the purposes of upgradation, modernisation, finances, operation and maintenance and management....
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.... to make regulations to carry out the purposes of the Act. Under the customs Act, the custom authorities are concerned with the setting up of public or private warehouses and for storage, removal and handling of imported goods in a customs area. 39. The Handling of Cargo under Customs Area Regulations, 2009 have been framed to provide for the manner in which the imported goods/export goods shall be received, stored, delivered or otherwise handled in a customs area. The regulations also prescribe the responsibilities of the persons engaged in aforesaid activities. 40. The custom authorities are concerned with the receiving, storing, delivering and handling of cargo in a custom area. The custom authorities are not concerned with the upgradation, modernisation, finances, operation and maintenance and management and provision of services at the Cargo Terminal of the Airport, which is the function of the AAI. The custom authorities are also not concerned with the responsibility of providing and fixing demurrage charges in respect of storage, processing and handling of Cargo at the terminal, which responsibility is of the AERA. 41. The Regulations of the AAI of which the Policy for Wa....
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....ne, penalty, personal penalty and/or warning has been imposed by the customs authorities. Even in cases of mis-declaration, undervaluation and concealment, the certificates are being issued. This is clearly giving premium to dishonesty. The waiver should be granted in genuine cases where the importers are ultimately found not at fault. It cannot be that all importers honest and dishonest are treated equally. 47. In cases where the importer is found innocent and there is no imposition of any fine, penalty, personal penalty and/or warning by the customs authorities, the Policy for Waiver would be applicable and the importer would be entitled to be considered for its benefit provided a certificate entitling him to be so considered is issued by the custom authorities. The importer would not be automatically exempt but would be covered under the Policy for Waiver and eligible for waiver which would be granted subject to other compliances. 48. The execution of the superdginama by CELEBI that it would not claim any storage charges for the safe custody of the goods charge would also not be in conflict with the Policy for Waiver. The Policy has been framed by the Airports Authority of Ind....