TaxTMI 
TaxTMI 
2025 (4) TMI 1417
X X X X Extracts X X X X
X X X X Extracts X X X X
....d to direct Respondent No. 1 and Respondent No. 2 to take all necessary steps and ensure that the Detention cum Demurrage waiver dated 17.01.2025 issued under Handling of Cargo in Customs Area Regulation 2009 and Sea Cargo in Customs Area Regulation 2009 and Sea Cargo Manifest Regulation, 2018 is implemented by all concerned including Respondent No. 3 and Respondent No. 4 and thereafter to physically release in the custody of the petitioner, the imported goods comprising of 10 containers of Soda Ash Dense Industrial Grade (HSN 28362010) imported by the petitioner. B. Your Lordships may be pleased to issue a writ of certiorari or Mandamus or writ in the nature of Certiorari or Mandamus or any other appropriate Writ, order or direction to Respondent No. 1 to initiate action against Respondent No. 3 and Respondent No. 4 in terms of Sea Cargo Manifest Regulation 2018 in view of non-compliance of waiver dated 17/01/2025; C. Your Lordships may be pleased to issue a writ of certiorari or Mandamus or writ in the nature of Certiorari or Mandamus or any other appropriate Writ, order or direction to the Respondent no. 4 to waive off the detention and demurrage charges if any....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... after completion of due customs procedure as prescribed under the Customs Act,1962 and other allied Acts and the Rules wherever possible. 6.4 It appears that thereafter, on 17.01.2025, respondent No. 2-Deputy Commissioner (SIIB), Customs House, Mundra informed respondent No. 3-Manager, Mundhra, CFS for waiver of the rent and demurrage charges in respect of the Cargo/goods covered under Bill No. 7388842 dated 21.12.2024 as per Rule 10 (1) (l) of Sea Cargo Manifest and Transhipment Regulations, 2018 [for short 'the Regulations, 2018) and Regulation 6 (1) (l) of Handling of Cargo in Customs Area Regulations from the date of hold i.e. 24.12.2024 till the date of issuance of No Objection Certificate dated 10.01.2025. 6.5 The petitioner, on receipt of the aforesaid letter/order dated 17.01.2025 by Email dated 18.01.2025, requested respondent No. 4 to do the needful in view of the detention waiver letter issued by respondent No. 2. 6.6 It is the case of the petitioner that, the petitioner through its Customs House Agent, by Email dated 20.01.2025, requested respondent No. 4 to share the detention Invoice up to 21.01.2025 and further enquired for the confirmatio....
X X X X Extracts X X X X
X X X X Extracts X X X X
....1.2025. 8. Learned advocate Mr. Mohammad Rafiq with learned advocate Mr. Nimit Y. Shukla for respondent No. 4 submitted that the respondent No. 4 is a delivery agent of the shipping line and therefore, is not covered by the definition of the "Authorized Sea Carrier" as per the definition 2 (1) (d) of the Regulations, 2018. 8.1 It was further submitted that respondent No. 4 is the owner of the containers of the goods in question and have lien over the goods for recovery of their charges as per the terms and conditions of the Bill of Lading and therefore, unless and until the said charges are paid to the respondent No. 4, the respondent No. 4 is not able to deliver the goods. 8.2 In support of his contention, reliance was placed on the following averments made in the affidavit-in-reply filed on behalf of the respondent No. 4: "4. Considering the facts and grounds raised in the writ petition, the brief issues to be considered at a preliminary level by this Hon'ble Court are the following: 4.1. Whether the Waiver letter issued under Regulation 10 (1) (Q) of the Sea Cargo Manifest and Transhipment Regulations, 2018 (SCMTR) legally binding on Respondent No. 4? ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tificate issued by the department under this regulation is not binding upon Respondent No. 4 or their principal. 4.1.5. The objective of the SCMTR, 2018 is to modernise and regulate the Import & Export Manifest to be filed by the conveyance or their agents. The SCMTR, 2018 is aimed to supersede the existing Import Manifest (Vessels) Regulation, 1971 and the Export Manifest (Vessels) Regulation, 1976. In exercise of powers conferred by sub-section (2) of section 141 read with section 157 of the Customs Act, 1962, the Central Board of Excise and Customs has introduced the Sea Cargo Manifest and Transhipment Regulations 2018 (SCMTR, 2018). The SCMTR, 2018 and further public notices have introduced certain new nomenclature like " Authorised Sea Carrier - ASC", " Other Notified Carriers - ANC", "Authorised Terminal Operator - ATO", "Authorised Custodian - ACU" etc." ... ... ... ... "5.1 The subject matter of the writ petition is about a commercial contact admittedly concluded between private parties as a contract of carriage of 20x20' containerised goods under B/L bearing no. ACLJEAMUN1250924, dated 16.12.2024. As per the contract of carriage, the Petitioner i....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... clauses as per the terms and conditions of the contract of carriage, i.e, the Bill of Lading. B/L. no. ACLJEAMUN1250924 dated 16.12.24 are crucial to be quoted: "Clause 1. "Merchant means and includes the shipper, the consignor, the holder of this Bill of Lading, the receiver and the owner of the goods. 18. Freight and Charges (3) All dues, taxes and charges or other expenses in connection with the Goods shall be paid by the Merchant. All Terminal Charges/Demurrage etc the port of discharge. Destination as per Line's Tariff & at the account of consignee" 5.7. SCMTR is a piece of delegated/subordinate legislation. Delegated legislation cannot override primary parent legislation. In Mumbai Port Trust v. Shri Lakshmi Steels, ((2018) 14 SCC 317], the Apex Court, while interpreting provisions similar to Regulation 10 (1) () in the Handling of Cargo in Customs Areas Regulations, 2009 made by the Board, has categorically held that the Regulations framed under the Customs Act are in the nature of subordinate legislation and that such subordinate legislation framed by a Board cannot, in any manner, affect the power and authority of the Port Trus....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s Exhibit 3 (Colly). 6.6 On 18.01.2025, the CHA be provided a copy of the alleged detention waiver letter to Respondent No. 4. However, the said waiver letter was addressed to the CFS (R3). Though it was miked copy to this Respondent and to the Petitioner. As the seed detention waver letter was addressed to the CFS, though there was a reference in the body regarding SCMTR, 2018, the specific direction for waiver was given to the CFS alone by invoking Regulation 6(1)(l) of the Handling of Cargo in Customs Area Regulations, 2009 (HCCAR, 2009), which is only applicable for the Custodian (CFS). A copy of the waiver letter dated nil, signed om 17.01.2025 is annexed and marked hereto as Exhibit-4. 6.7 Subsequently, on 19.03.25, a letter seeking explanation as to why the waiver wes not granted wader provisions of SCMTR, 2018 was issued by Assistant Commissioner of Customs to Respondent No. 4. A copy of the letter dated 19.03.2025 is produced and marked hereto as Exhibit-5. 6.8 This respondent has replied in detail to the said letter dated 19.03.2025, justifying the actions of the Respondent No. 4. The copy of explanation dated 22.03.2025 is annexed and marked he....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... No. 4 is bound by the Regulations, 2018. In support of his submissions, reliance was placed on the following averments made in the affidavit-in-reply filed on behalf of respondent Nos. 1 and 2: "10. With regards to reference to Counter Affidavit submitted by M/s. WINWIN Maritime Limited, Respondent No. 4, wherein they have questioned the applicability of Regulation 10 (1) () of the Sea Cargo Manifest and Transhipment Regulations, 2018 (SCMTR, 2018) to them it is submitted that upon verification, it has been found that M/s. WinWin Maritime Limited is registered with Customs under SCMTR as an 'Authorized Sea Agent' (ASA). The said registration can be duly verified from the ICEGATE portal. A copy of Snapshot attached hereto and marked as Annexure E. 11. Further it is respectfully submitted that, the contention of the M/s. WINWIN Maritime Limited, that they are not an "Authorized Carrier" and hence not bound by Regulation 10 (1) () is misconceived and contrary to the provisions of SCMTR, 2018, on the following basis: a) The definition of "Authorized Carrier" under SCMTR explicitly includes an "Authorized Sea Carrier". (b) The definition of "Authoriz....
X X X X Extracts X X X X
X X X X Extracts X X X X
....en registered as Authorized Sea Agent is bound by Regulations, 2018. 10. Having heard learned advocates for the respective parties and considering the facts and material of case, it would be germane to refer to the relevant provisions of the Regulations,2018 which read as under: "2 Definitions.-(1) In these regulations, unless the context otherwise requires, (c) "authorised carrier" means an authorised sea carrier, authorised train operator or a custodian, registered under regulation 3 and postal authority; (d) "authorised sea carrier" means the master of the vessel carrying imported goods, export goods and coastal goods or his agent, or any other person notified by the Central Government;" "3. Registration. - (1) Any person who is required to deliver arrival manifest or departure manifest shall apply to the jurisdictional Commissioner of Customs for registration in the Form-I. "Provided that the postal authority shall not be required to apply for the registration in case such authority intimates to the jurisdictional Commissioner of customs in writing, to transact business under these regulations."; (1A) Any other person not....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ng the suspension or continuing it for a further period not exceeding ninety days from the date of suspension, as the case may be. Provided that where the suspension against the authorised carrier has been continued, the Commissioner of Customs concerned shall intimate to the jurisdictional Commissioner of Customs, about the order within fifteen days from the date of issue of such order." .... .... ... "13. Imposition of Penalty.-An authorised carrier who contravenes any provision of these regulations shall be liable to a penalty which may extend to rupees fifty thousand." 11. On perusal of the above Rules which are framed in exercise of powers conferred by section 157 read with sections 30, 30A, 41, 41A, 53, 54, 56, sub-section (3) of section 98 and sub-section (2) of section 158 of the Customs Act,1962, it appears that the Regulations are framed while exercising the general powers to make the Regulation read with section 158(2) which authorizes the Central Government or Board to make Rules or Regulations under the Act for levy of fees in respect of the application etc. and that for levy of penalty. Sub-section (2) of section 157 of the Customs Act, 1962 provi....