TaxTMI 
TaxTMI 
TaxTMI 
2016 (2) TMI 539
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....,2008 (hereinafter referred to as the Rules of 2008). Based on this report, the Customs authority confiscated the goods on 27.02.2012 under Section 111(d) and 111(m) of the Customs Act, 1962 (hereinafter referred to as the Act) and seized the goods under Section 110 of the Act. A show cause notice dated 12.06.2012 followed the said seizure directing the petitioner to show cause as to why the goods should not be confiscated and penalty should not be imposed under Section 112(a) of the Act. The petitioner submitted a reply giving detailed evidence to show that the goods imported was not a "Waste Oil" but "Heavy Cut Oil". 2. It transpires that the Customs Department sought clarification from the Ministry of Environment & Forest, Government of India, New Delhi with regard to the product in question. The Ministry of Environment & Forest issued a clarification dated 31.08.2012 indicating that the goods imported by the petitioner was not "Waste Oil". 3. The competent authority, namely, the Additional Commissioner, Customs, Excise & Service Tax, Ghaziabad after considering all aspects of the matter and, after considering the report of Ministry of Environment and Forest, issued an order d....
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....ssionerate, Ghaziabad dated 3.1.2014, the consignment under bill of entry dated 23.11.2011 was ordered to be released at appropriate value at the time of import of said goods. It is submitted that despite the directions to release of goods issued by the adjudicating authority, the respondent no.5 has not permitted release of the goods. The respondent nos.3, 4 and 5 will either release the goods in accordance with law after taking requisite charges, if any, payable by the petitioner, or show cause by filing counter affidavit within six weeks. List on 20th March, 2014." 6. The Central Warehousing Corporation, respondent nos. 3 and 4 filed their counter affidavit on 11.04.2014 indicating that the Inland Container Depot, Loni District Ghaziabad has been notified as the ICD Loni for unloading of the imported goods and for loading of the export goods under Section 7 of the Customs Act. The said respondents further indicated that they were appointed as the custodian of the goods, which are unloaded in the customs area under Section 45 of the Act, which would remain in their custody till it is approved by the Commissioner of Customs in accordance with the Act. The said respondent c....
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.... It was contended that since Section 63 of the Act provides for payment of warehousing charges, required warehouse charges could not be waived. 8. The Deputy Commissioner of Customs, respondent no. 2 has not filed any counter affidavit but the learned counsel appearing on its behalf contended that the goods were neither detained nor seized and only an enquiry was made which after proper investigation the proceedings were dropped and an order was passed for releasing the goods. The learned counsel for the respondents contended that a direction was also issued to the Central Warehousing Corporation as well as to respondent no. 5 to release the goods without payment of warehouse charges in view of the Regulation 6(l) of the Regulations of 2009. The learned counsel contended that if the Central Warehousing Corporation and its service provider were not agreeable to the order issued by the Customs Department for release of the goods without payment of warehouse charges, the remedy available to them was to file an appeal under Section 129-A of the Customs Act. 9. In the light of the aforesaid stand taken by the parties, we have heard at length Sri C. L. Pandey, the learned Senior Counse....
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.... goods were carried." 12. Under the aforesaid provision the imported goods would remain in the custody of the person approved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. 13. Section 49 of the Act provides for storage of imported goods in warehouse pending clearance. For facility, Section 49 of the Act is extracted hereunder: "49. Storage of imported goods in warehouse pending clearance. - Where in the case of any imported goods, whether dutiable or not, entered for home consumption, the Assistant Commissioner of Customs is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time, the goods may, pending clearance, be permitted to be stored in a public warehouse, or in a private warehouse if facilities for deposit in a public warehouse are not available; but such goods shall not be deemed to be warehoused goods for the purposes of this Act, and accordingly the provisions of Chapter IX shall not apply to such goods." 14. "Warehouse" has been defined under Section 2(43) of the Act which means a public warehouse appoi....
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....rage charges are levied for the place the goods occupy and for the period they remain not released on account of lack of customs clearance. 17. Section 45(2) of the Act has been interpreted in International Airports Authority of India Vs. M/s Grand Slam International and others, 1995 (77) ELT 753. The Supreme Court held that the authority created under a statute would be entitled to charge demurrage charges and an importer would be liable to pay the demurrage charges. The Supreme Court found that Section 45 of the Act does not provide that such person, namely, the custodian would not be entitled to recover charges from the importer for the period the goods remain in their custody. The Supreme Court held that sub-section (2) of Section 45 of the Act does not in any way impose an obligation on the custodian approved under sub-section (1) thereof not to collect charges leviable on the consignee. 18. Similar view was again given by the Supreme Court in Shipping Corporation of India (supra) as well as in Monika India Vs. Union of India, 2012 (283) ELT 33 by the Delhi High Court and by the Supreme Court in Trustees of Port of Madras Vs. K.P.V. Sheikh of Mohd. Rowther and Co. Pvt. Ltd.,....
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....as Regulations-2009 as a,ended vide Notification No. 96/10-cus(NT) dated 12.11.2010." 22. The aforesaid terms indicate that the Central Warehouse Corporation shall abide by all the conditions as mentioned in the earlier notification dated 22.03.2007 and will also observe all the Rules and Regulations prescribed under the Customs Act, 1962. Further, the Customs Cargo Service Provider shall abide and shall discharge all the responsibilities assigned under the Regulation 6(l) of the Regulations of 2009. 23. From the aforesaid, it is apparently clear that the Central Warehouse Corporation or its partner, respondent no. 5 could not demand any warehouse charge on the goods, which were detained by the Customs Authority. They were bound to comply with the terms and conditions of their appointment letter read with clause 6 (l) of the Regulations of 2009. The contention of the respondents that clause 6(l) is not applicable in view of the word 'subject to' given in clause 6(l) and, therefore, section 63 of the Act would prevail, is patently erroneous. The right to collect warehouse charges has already been upheld by the Supreme court in Shipping Corporation of India Vs.Jain Woolen ....
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.... of 2009. 25. At this stage Clause 6(l) of the Regulations, 2009 is extracted hereunder: "subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be;" 26. The aforesaid provision read with Clause 12 of the terms and conditions of the licence clearly prohibits the service provider to demand warehouse charges on the goods seized, detained or confiscated by the Customs department. We are, therefore, of the opinion that the respondent nos. 3, 4 and 5 had no authority of law to demand warehouse charges on the goods seized or detained by the Customs Department. 27. In view of the aforesaid, we are of the opinion that the petitioner was entitled for release of the goods without payment of warehouse charges. We are, however, of the opinion that once a stand was taken by the respondents to release the goods on payment of charges, the petitioner should have got the goods released upon payment of the charges, as demanded by the respondents, by depositing the same under p....