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2022 (7) TMI 29
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....f the Act, and null and void. 2. W.P.No.23756 of 2017 Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing third respondent to issue the Detention Certificate and other appropriate directions to the concerned Authorities to enable the petitioner to comply with the Order-in-Original dated 05.01.2016 bearing No.43805/2016 by re-exporting the subject consignment to its originating country. 3. By the impugned communication dated 23.12.2018, the third respondent has ordered partial waiver of rent and demurrage of the seized consignment only for the period between 27.01.2015 to 19.10.2015. The impugned order reads as under: OFFICE OF THE COMMISSIONER OF CUSTOMS (CHENNAI II) CUSTOM HOUSE, CHENNAI - 600 001 www.chennaicustoms.gov.in F.No:S Misc.895 /2016-Group 2 Dated:23.12.2016 To 1. M/s. Continental Warehousing Corporation (Nava Sheva), Madhavaram, Chennai-600 110. 2. M/s.Sanco Trans Limited, No:592, Ennore Express High Road, Chennai-600 057. Sir, Sub: Customs - Order in Original No:43805/2016 dated 05.01.2016 p....
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....er dated 24.08.2015 directing the respondent to consider the petitioner's representation on imported consignment in four tanker containers vide four Bills of Entries back to the supplier. The imported consignment after their import into India was stored in the fourth and fifth respondents Container Freight Station. 7. Under these circumstances, the Additional Commissioner of Customs, the second respondent herein passed the Order-in-Original No.43805 of 2016 dated 05.01.2016. By the aforesaid order, the second respondent held that the imported R22 Refrigerant Gas by the petitioner was without any proper licence and therefore, were liable to be confiscated under Section 111(d), 111(l) and 111(m) of the Customs Act, 1962. By the aforesaid order, the second respondent, also imposed redemption of Rs.10,00,000/- under Section 125 of the Customs Act, 1962 on the petitioner to be paid within a period of fifteen days from the date of receipt of a copy of that order and also imposed penalty under Section 112(a) of the Customs Act, 1962. The order also imposed penalty under Section 112(a) and 114(AA) of the Customs Act, 1962 on the Managing Director of the petitioner. 8. The petitio....
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....t import of R-134a by mis-declaring the description to evade payment of anti-dumping duty, in the name of M/s.Sherisha Technologies by Shri Anil Jain, Directorate of Revenue Intelligence, Chennai Zonal Unit sought extension of time for a further period of six months from 29/07/2015 to 28/01/2016 as envsaged under proviso to section 110(2) of the Customs Act, 1962. Accordingly, extension was granted by Commissioner of Customs, Chennai.II vide Order in Original No.40007/2015 in F.No.CAU/DRI/CHE/19/2015 dated 23/07/2015. 12. The learned counsel for the petitioner further submits that though the petitioner had sent several representations both to the second and third respondents herein, and to the fourth and fifth respondents, the owner of the Freight Station. It is submitted that the imported goods were allowed to remain under their custody and no steps were taken for waiver of rent payable for the period before the aforesaid orders were passed and as a result of which the goods still continue to remain in the custody of the respondents four and five and therefore the petitioner was constrained to file W.P.No.15563 of 2017 before this Court. 13. The learned counsel for the petit....
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....ichi Gounder Memorial v. Commissioner of Customs (Appeals-II), Chennai reported in 2019(368)E.L.T.495(Mad.). 18. The learned counsel for the petitioner, therefore submits that there is no justification in waiving only up to the date of payment of Customs Duty or the date specified in impugned communication dated 27.01.2015 to 19.10.2015. 19. The learned counsel for the petitioner submits that as neither the third respondent nor the fourth respondent or the fifth respondent allowed clearance of export goods and the petitioner cannot be forced to pay the aforesaid rent / demurrage charges. 20. Appearing on behalf of the official respondents / the respondents 1 to 3, the learned Senior Standing Cousel submits that imported goods were prohibited goods and the petitioner had attempted to smuggle these goods as free goods and therefore, the petitioner is not entitled for any waiver. 21. The learned counsel for the respondents further submitted that pursuant to Order dated 21.06.2017 of this Court which was received on 12.09.2017 and two personal hearings were held pursuant to the letters dated 03.10.2017 and 04.10.2018 but the petitioner has not chosen to appear and therefore....
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....6. 28. The learned counsel for the fourth and fifth respondents has placed reliance on the following decisions of the Hon'ble Supreme Court of India as well as this High Court and Delhi High Court. 1. M/s.International Airports Authority of Inia v. M/s.Grand Slam International & Others reported in 1995 SCC (3) 151, JT 1995 (2) 452. 2. Shipping Corporation of India v. C.L.Jain Woolen Mills & Ors., reported in 2001 (129) E.L.T. 561(S.C.). 3. Mumbai Port Trust v. M/s.Shri Lakshmi Steels and Ors., reported in 2017 (352) E.L.T.401(S.C.). 4. Wardha Solar (Maharashtra) Pvt. Ltd., v. Union of India & 3 others in W.P.Nos.15490, 16359, 17114 & 17433 of 2020) dated 22.06.2021. 5. M/s.Sai Lakshmi Engineering Limited v. Principal Commissioner of Customs and 4 others in W.P.No.14370 of 2018 dated 01.07.2021. 6. Trip Communication Pvt. Ltd., v. Union of India & Others reported in 2014(302) ELT 321 (Del.) 7. Muscle Fusion Fze v. The Principal Commissioner of Customs & Ors., reported in 2017(354) ELT 525 (Del.). 8. Mate (India) Pvt. Ltd., v. Commissioner of Customs (ICD) and others reported in 2020 (373) E.L.T.666 (Del).....
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.... 32. However, the petitioner filed appeal before the Commissioner Appeals against the aforesaid order in Appeal Nos.C3-II/181/O/2016-Sea and C3-II/182/O/2016-Sea. These appeals were eventually dismissed by the Commissioner (Appeals-II) vide Order in Appeal C.Cus II No.373 & 374/2016 dated 19.04.2016 bearing reference No.C3-II/181 & 182/O/2016- SEA. 33. Thus, the petitioner also did not take any steps for re-exporting the imported R22 Refrigerant Gas. As per the regulations 6(l) of the Handling of Cargo in Customs Areas Regulations, 2009 framed under sub-Section (2) of Section 141 read with Section 157 of the Customs Act, 1962, the Customs Cargo Service Providers shall 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. 34. The facts of the case indicates that the third respondent vide impugned order dated 23.12.2016 has granted partial weaver of demurrage for the period between 27.01.2015 (being the date of seizure) upto 19.10.2015, under the regulations of ....
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....or collected by the authority or any authorized cargo handling agency for use of cargo terminal facilities, audit services and other expenses incurred including loading and unloading, storage and warehouse or processing cargo goods etc. and includes electricity charges, insurance premium, security charges, terminal charges electronic data interchange and electronic data interchange service centre charges, Value-Added Network service charges, charges for heavy cargo, and cargo requiring special care such as hazardous, perishable, live animals, valuable and express cargoes et cetera and license fee. 57. The expression "Transshipment Cargo" has been defined in Regulation 2(zd), to mean cargo which is unloaded from one carrier and loaded or intended to be loaded on the same or another carrier or vehicle for on-carriage to its final destination. 58. The expression "demurrage" also has been defined in Regulation 2(2) of the aforesaid Regulation. It means the rate or amount of charges payable to the authority by the shipper or consigning or carrier or agent or passenger for utilising storage facility at the Cargo Terminal, for storage of cargo, goods, unaccompanied bagga....
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....toms Authority. (b) Delay arose by reason of dispute in the assessable value or for revalidating or correcting the licence in ordinary course of appraisal." 65. The authority namely AAI can thus grant waiver/ remission of demurrage charges in consultation with the Finance and Accounts Department and grant regarding cargo operation. However, to grant such relief it relies on customs documents. 66. The procedure for issue of "Detention Certificate" was contained in Public Notice No. 111 of 1985 dated 29.07.1985 of the Bombay Custom House. Issue of "Detention Certificate" was an innovation by the Customs Authorities. This was introduced much prior to Handling of Cargo in Custom Areas Regulations, 2009. Though a copy of the Public Notice No.111 of 1985 is not traceable, para 2 of the said Public has been reproduced by the Hon'ble Supreme Court in BOARD OF TRUSTEES OF THE PORT OF BOMBAY Vs. JAI HIND OIL MILLS COMPANY, (1987) 1 SCC 648. Same extracted here under from the said judgment:- Paragraph 2 of the said notice sets out the circumstances under which a regular detention certificate could be issued by the Customs House for facilitating the importer....
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....arge 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. 68. As per Regulation 6(1)(l) of the Handling of Cargo in Customs Area Regulations, 2009, a Customs Cargo Service Provider which includes the Air Port Authority of India cannot charge any rent or demurrage on the seized or detained or confiscated goods by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be. This was perhaps framed in line with Public Notice No.111 of 1985 dated 29.07.1985 of Bombay Customs House. 69. The petitioner is insisting for the "detention certificate" from the 1st respondent so that the 3rd and the 4th respondents can be persuaded to not to charge any rent or demurrage on the imported goods which transshipment from the Chennai Airport. 70. The Superintendent of Customs or the Appraiser or the Inspector of Customs or the preventive officer or examining officer as the case may be can exercise the power to recommend waiver of demurrage and other charges....
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.... entitle him to impose conditions upon the proprietors of ports or airports before they can be approved as customs ports or customs airports. Section 45 provides that all imported goods imported in a customs area must remain in the custody of the person who has been approved by the Collector of Customs until they are cleared and such person is obliged not to permit them to be removed from the customs area or otherwise dealt with except under and in accordance with the permission of the Customs Officer. Section 45 does not state that such person shall not be entitled to recover charges from the importer for such period as the Customs Authorities direct. 42. The purpose of the Customs Act on the one hand and the Major Port Trusts Act and the International Airports Authority Act on the other hand are different. The former deals with the collection of customs duties on imported goods. The latter deals with the maintenance of seaports and airports, the facilities to be provided thereat and the charges to be recovered therefore. An importer must land the imported goods at a seaport or airport. He can clear them only after completion of Customs formalities. For this purp....
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.... approving the International Airports Authority of India to be the custodian of such imported goods in the customs area of Indira Gandhi International Airport, New Delhi and Central Warehousing Corporation to be the custodians of such imported goods received at the customs area- the Container Freight Station, CWC Complex, Pragati Maidan, New Delhi, by issue of public notice or otherwise in that regard, if by such notice or otherwise directs such custodians not to collect custody charges from the consignees of such goods-"the Cargo", because of detention certificates issued by him or his delegatee, will not be acting within the powers conferred upon him under the Act, its Rules or its Regulations and hence directions given by the Customs Collector or his delegatees to release the goods of importers or consignees without collecting demurrage charges from them cannot be enforced by courts either against IAAI or CWC." This Court clearly held that Section 45 of the Customs Act did not, in any manner, affect the rights of the International Airport Authority to collect charges from the importer. 77. In Mumbai Port Trust Vs. Shri Lakshmi Steels, 2017 (352) E.L.T.401 (S.C)....
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....by this Court in a catena of judgments referred to above was no longer applicable in view of the 2009 Regulations. Reliance placed by the Union of India on Section 128 of the Major Port Trusts Act is totally misplaced. This provision only deals with the right of the Central Government to collect customs duties. It does not deal with the rights of the Port Trust to collect rates including demurrage. 36. The next issue which arises is whether any direction could be issued to the DRI/Customs Authorities to pay the demurrage charges to the Port Trust and the detention charges to the shipping line. 37. We have already referred to a number of decisions wherein the law has been clearly laid down that even if the importer is not at fault, it is the importer alone who is liable to pay the demurrage charges. As far as detention charges are concerned, this is a private contract between the importer and the carrier i.e. shipping line. The DRI/Customs Authorities can be directed to pay the demurrage/detention charges only when it has proved that the action of the DRI/Customs Authorities is absolutely mala fide or is such a gross abuse of power that the officials of the DRI/Cus....
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....No.111 of 1985 dated 29.07.1985 of the Bombay Custom House alone. It can be issued in appropriate case to cover the circumstances specified in the Policy of the Airport Authority as per Regulation 6 of the Airport Authority of India (Storage and Processing of Cargo, Courier and Express Goods and Postal Mail) Regulations, 2003 as was noted in Trip Communication Pvt. Ltd. (cited supra) by the Delhi High Court. 84. As far as the present case is concerned, since none of the circumstances noted by the Delhi High Court in Trip Communication Private Limited Vs. Union of India are attracted, the question of the 1st respondent issuing such certificate to the petitioner for the petitioner to claim waiver does not arise. Therefore, to that extent the 1st respondent was justified in denying "Detention Certificate" to the petitioner. 85. Though, it is not the case of the abuse by the officers of the Customs, there are sufficient indications to show that there was a complete disruption of service at the Air Cargo Complex during the relevant period due to alleged arrest of the officers. In absence of the officers to receive the transshipment application, there could have been to....
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....ly, connected Miscellaneous Petition is closed." 39. The facts on record also indicates that the petitioner was forced to approach this Court earlier in W.P.No.4207 of 2015 and W.P.No.15563 of 2017 which came to be disposed by an order dated 24.08.2015 and 21.06.2017 respectively. 40. The former writ petitions was filed for a mandamus to consider the petitioner's representation for permitting the petitioner to re-export the imported consignment of R22 Refrigerant Gas which was later allowed to be re-exported on payment of redemption fine/penalty on 24.08.2015, by directing the official respondents to decide the issue. Thereafter, the Order in Original No.43805 of 2016 dated 05.01.2016 came to be passed by the second respondent Additional Commissioner of Customs (Gr-2). 41. The second writ petition was later filed by the petitioner once again for a mandamus to consider the petitioner's representation dated 05.05.2017 in an expeditious manner after the second respondent Additional Commissioner of Customs (Gr-2) passed Order in Original No.43805 of 2016 dated 05.01.2016 and after the petitioner's appeal was dismissed vide order in Appeal C.Cus II No.373 & 374/2016 dated 19.04....