TaxTMI 
TaxTMI 
2021 (11) TMI 664
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....eived, stored, delivered, despatched or otherwise handled in a customs area in such manner, as may be prescribed and the responsibilities of persons engaged in the aforesaid activities shall be such, as may be prescribed. The HCCAR, 2009 provide conditions and responsibilities to be fulfilled by the 'Customs Cargo Service Provider'. The responsibilities include the marking separate areas for unloading of imported goods for their storage with respect to the category of importer, nature of goods, place of destination, etc. 3. The appellant CONCOR is the custodian of the imported goods or goods for export under the Customs Act at Inland Container Depot, Tuglakabad (ICD - TKD for short). As such, the appellant is bound to keep the goods in their custody safe and secure in accordance with the provisions of the Customs Act and the regulations thereunder. Further, the appellant is required to comply with the Regulations relating to 'handling and storage of hazardous chemicals'. For compliance of their obligation as aforementioned, the appellant has executed a 'Customs Cargo Service Provider (CCSP) bond', as well as 'carrier bond', alongwith undertaking in Form-A. 4. On 06.05.2017, after....
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....e in a phased manner, and further not accepting any container at ICD, TKD is unwarranted and harsh. It was also urged that appellant CONCOR is a Public Sector Undertaking, conscious of its responsibilities. The Hon'ble High Court took notice that the premises at ICD, TKD are also used for other commodities, which are transported for use throughout the length and breadth of the country. It was also noticed that there are more than 30,000 containers lying at the ICD, TKD and only few contains dangerous goods. The Court appreciated that it is unnecessary and will create difficulty for all the containers to be removed from the ICD, as well as not accepting of further containers as ordered by the SDM. The Court also took notice that such an order by the SDM would also be pre judicial to the national interest. Accordingly, the Hon'ble High Court was pleased to stay the direction of the SDM as contained in order dated 09.05.2017 as to - (b) release of all containers from ICD, TKD in a phased manner; (c) no fresh containers should be allowed at the ICD, TKD till further order. 6. Learned Counsel for the appellant assured the Hon'ble High Court to inform as to how many containers are t....
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.... Customs (Import), ICD Tughlakabad. One of the conditions of the bonds is that the Appellant has to furnish evidence to the satisfaction of the proper officer, within one month of dispatch of each consignment of import that the goods transported by the Appellant have been duly landed at the destination port, which in this case is ICD-TKD. Your action of stopping the goods meant for ICD TKD, at Khatuwas itself, is therefore, in direct contravention of the conditions of these bonds and therefore is a violation of Section 54 of the Customs Act, 1962. (iv) Further, as per para 8(D) of the General Notes Regarding Import Policy, of ITC(HS), 2017, the imports of Hazardous Chemicals shall also be subject to the provisions of the Manufacture, Storage and Import of Hazardous Chemicals Rules,1989. As the manufacture, storage and import of hazardous chemical is governed as per the provision of Manufacture, storage and import of Hazardous Chemicals Rules, 1989, notified by Ministry of Environment and Forest (Department of Environment, Forest and Wildlife), Notification dated 27.11.1989, framed in exercise of the powers conferred by Section 6,8,and 25 of the Environment Protection Act, 1986. T....
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....y - Chloromethyl Pyridine, is a freely imported item under the Exim Policy and Foreign Trade Policy. The Hon'ble High Court also took notice that the order from the SDM dated 06.05.2017/ 09.05.2017 was not sustainable on several counts and have been passed without any enquiry as contemplated under Section 133 of the Cr.P.C. It was further noticed by the High Court, that the learned SDM did not give any opportunity of hearing for the purpose of annulling / verifying and modifying the order under challenge. The Hon'ble High Court also took notice that out of about 8845 containers lying at ICD - TKD, only 230 containers were identified as containing hazardous cargo. Out of these 230 containers, only 99 containers have been received after 01.01.2017 which the appellant has assured would be delivered to the importer / consignee after clearance by the Customs, in a period of three weeks. It was also noticed that any unclaimed container or put on hold container would be dealt with, as per the provisions of the Customs Act. The 27 containers in which fire cracker have been stored and have been confiscated by the Customs Department and thereafter released to the ICD for destruction, with a ....
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....aken up the issue for finding out and fixing the responsibility for the mishap, which happened on 06.05.2017, as well as for any corrective measures required. 12. The Hon'ble High Court further noticed that leakage which happened on 06.05.2017 was while the containers containing chloromethyl pyridine, were being loaded on the lorry outside the ICD. Perhaps, the container was damaged by pitch fork, which was used for loading the containers, and friction between the two containers, while being loaded on the lorry. The Court also took notice that the staff of CONCOR immediately and tried to stop escape of the obnoxious gas by taking appropriate measure, and also recorded appreciation for prompt action taken by the CONCOR and Delhi Police, immediately galvanizing into action for evacuating the residents from around the area and also helped in moving the people to nearby hospitals. They also communicated the name of the chemical to the medical team to help in fast diagnosis and providing the right treatment. Further, observing that the learned Magistrate have not heard the parties before issuing the impugned orders, and accordingly remanded the matter to the learned SDM for a final det....
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....items are not stored at ICD/ Concor Depot. Completely banning the handling of transportation and storage of such articles will mean throwing away the baby with the tub. In pursuance of the order dt. 31.05.2017 it needs to be decided whether the continuation of the ICD Depot of CONCOR at Tughalakabad in a nuisance and if it is one, whether it is to be removed. At present the ICD Depot, where chemical leak took place on 06.05.2017 is used for storage of a number of articles for domestic, commercial and industrial use. Moreover, it has to be examined whether the keeping of the goods and merchandise is injurious to the health and physical comfort to the community and it has to be removed as it can cause conflagration of explosives or any other accident/ disaster, causing loss of life and property. A highly dangerous and dilapidated building about to fall in the midst of a dense locality which can collapse any time, a very dangerous/ berserk animal which can attack and kill/ injure people, a big tree which can fall any time due to flood and strong wind etc. are examples of nuisance. Such type of articles, animals, building etc. have to be destroyed or removed to provide the safety t....
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....es crystal clear that the existence of ICD with storage of some hazardous chemical material, which is less than 2% of total goods, in itself is not a nuisance if proper security and safety measures like Disaster Plan are adopted. It is also a fact that after 06.05.2017 CONCOR. has taken a number of additional measures which have been corroborated by the DPCC and CPCB scientists team after inspection on 30.11.2017. The CONCOR should relentlessly pursue the zero tolerance policy in safety, security and environment matters as it is aptly said SKY IS THE LIMIT in safety matters. Keeping in view the DGFTs Rules for storage of import/ export commodities, which are freely importable / exportable, can't be stopped at ICD, Tughlakabad, in New Delhi in the national interest as explained earlier. Hence, the ICD Tughlakabad may continue to function with adequate safety measures as mandated by law. I therefore, order accordingly." 15. In the meantime, during the pendency of the proceedings before the Hon'ble High Court, and thereafter the learned SDM, Customs Department issued show cause notice dated 01.06.2017, inter alia alleging that appellant CONCOR has issued a Public Notice dated 16.05.2....
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....al Rules, 1989 under the Environmental Protection Act, 1986, notified by the Central Government by Notification dated 27.11.1989. These rules list out the hazardous chemical and obligation of various authorities, and various persons who deal with the same. As custodian, CONCOR is expected to comply with these provisions in so far it relates to hazardous chemical. Further, observed that CONCOR has made reference to DGFT regarding denotification of ICD - TKD for cargo identified as hazardous, as per IMDG report. Pending decision by DGFT, it was not legal on the part of CONCOR to issue Notice dated 16.05.2017. 16. It is further alleged that CONCOR has failed to mark separate areas for unloading of imported cargo for their storage with nature of goods. Further, CONCOR has not taken consent of the proper Officer of Customs, prior to issue of Public Notice. It is further alleged that CONCOR has not performed responsibility as required for safe handling of dangerous cargo. Accordingly, appellant was required to show cause as to why action should not be initiated for violation of Regulations 6(1)(d) (f) (i) and (q) of HCCAR, 2009 and further why penalty not be imposed under Regulation 12 ....
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....zardous cargo, which was also inspected by the CISF Officers and Officers of the appellant, and no adverse finding or observation was recorded. viii) Learned Commissioner have failed to appreciate that the appellant have moved some of the containers carrying hazardous chemical as per direction of the learned SDM of Lajpat Nagar as directed in his order, which was also confirmed by the Hon'ble High Court in its interim order, and such orders were also in the knowledge of the Customs Department, as such there is no violation of any provisions under the Customs Act and the HCCAR, 2009. x) Further, the appellant had kept informing the Customs Department and kept them in loop throughout. Such translocation expenses have been fully borned by the appellant, is without any claim from the Customs Department. Learned Commissioner has failed to notice that the appellant has taken requisite steps for separate storage of hazardous goods as well as proper marking/ signage alongwith well documented 'disastrous management plan'. 19. During the course of argument, the appellant have further filed the copy of final order dated 31.05.2017 of the Hon'ble High Court passed in Criminal Revision No.....