TaxTMI 
TaxTMI 
2001 (4) TMI 100
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....I/13/5/99-Cus. Tech., dated 15-11-1999 and valid up to 25-11-2004. As per the licence issued, the licensee is authorized to transact business as Customs House Agent at ICD Reddipalem, Guntur. 4.The Container Corporation of India Limited, Guntur, (CONCOR, for brevity), the 2nd respondent herein after developing the area and upgrading the facilities by providing infrastructure at ICD, Reddipalem, Guntur and furnishing the undertakings and requisite Bond, as required in Board's Circular No. 128/95, dated 14-12-1995 requested the Commissioner for re-notification of the "Customs Area" and appointment of CONCOR as the Custodian. After inspection of the new facilities and scrutiny of the undertakings, the Commissioner issued Notification No. 1/2001, dated 17-1-2001 appointing CONCOR as the Custodian and Public Notice No. 9/2001, dated 3-2-2001 prescribing the procedure to be followed at ICD, Reddipalem, Guntur for Imports/Exports. The impugned notification inter alia provides : "……..For factory stuffing CONCOR shall arrange for movement of empty containers to the Factories for stuffing and after completion of stuffing and customs sealing it is the responsibility of CONCOR as ....
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.... competent to answer the questions put by the authorities since they have cleared the concerned goods for import or export. The CHAs are also answerable to their principals, namely the importers or exporters, if for any reason the goods are delayed or have been detained anywhere during transportation. The CHAs therefore have to necessarily take charge of the transportation of the goods also. In fact, the Customs House Agents Licensing4. Rules, 1984, at Rule 10(2)(b) clearly lays down that to qualify for the grant of a regular CHA licence, the applicant must show that it possesses transportation facilities. Only then a regular licence is issued. Thus even the statute recognizes that the CHAs are the persons who are normally entrusted with the transport of the goods cleared by them. Since the transportation of such goods can either be through road, rail, inland waterways or sea, depending upon each case. The CHAs must possess the means for such transportation. The petitioner herein has in fact obtained a Multi-model transport operation licence issued by the Ministry of Surface Transport and is licensed to carry cargo on a warehouse to warehouse basis using more than one mode of tr....
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....on. The learned Counsel would also contend that though in the impugned public notice the source of power of the Commissioner is not disclosed, it is issued in the purported exercise of power conferred upon him under Section 45 of the Act and if that is so, Section 45 of the Act does not permit him to issue the impugned public notice governing export of goods. Further, Sections 50 and 51 of the Act which deal with clearance of export goods do not authorize the Commissioner to issue the public notice of the nature impugned in this writ petition. 7.On the other hand, Shri L. Narasimha Reddy, learned Senior Standing Counsel for Government of India, would at the threshold contend that the petitioner cannot be said to be an aggrieved person by issuance of the impugned public notice inasmuch as none of its legal rights are infringed or affected and, therefore, the writ petition filed by it is not maintainable. The obligations imposed on the petitioner-company in its status as CHA under Regulation 14 of the Customs House Agents Licensing Regulations, 1984 (the Regulations, for brevity) do not include the obligation of the petitioner to transport the goods. The learned Senior Standing Co....
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....; the restrictions and conditions (including the furnishing of security by the licensee) subject to which a licence may be granted; (e) the circumstances in which a licence may be suspended or revoked; and (f) the appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeals shall be filed." Sub-section (2) of Section 146 empowers the Board to make Regulations for the purpose of carrying out the provisions of Section 146, and in particular, on the subjects enumerated in Clauses (a) to (f). Accordingly, in exercise of that power, the Board has framed the Regulations. Regulation 2(c) defines "Customs House Agent". It reads : "(c) "Customs House Agent" means a person licensed under these regulations to act as agent for the transaction of any business relating to the entry or departure of conveyances or the import or export of goods at any customs station." Section 2(9) of the Act defines "conveyance" as follows : "2(9). 'conveyance' includes a vessel, an aircraft and a vehicle". Section....
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....nbsp; drawback; (n) offences under the Act; (o) the provisions of allied Acts including Imports and Exports (Control) Act, 1947 (18 of 1947), Foreign Exchange Regulation Act, 1973 (46 of 1973); Indian Explosives Act, 1884 (4 of 1884), Arms Act, 1959 (54 of 1959), Opium Act, 1878 (1 of 1878), Drugs and Cosmetics Act, 1940 (23 of 1940), Destructive Insects and Pests Act, 1914 (2 of 1914), Dangerous Drugs Act, 1930 (2 of 1930) in so far as they are relevant to the clearance of goods through customs; (p) procedure in the matter of refund of duty paid, appeals and revision petitions under the Act." A perusal of Regulation 9(3) makes it clear that the syllabus for the examination does not include anything relating to transport of goods at all. 10.The contention raised by the learned Counsel for the petitioner in paragraphs 3 and 4 of the affidavit that the functions of a CHA are two fold, the first part being 'paper work' after clearing the goods and the second part being 'transport of goods', is neither justified nor legally tenable. The inference ....
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....nment sources of any kind to which access is not granted by proper officer; (i) not attempt to influence the conduct of any official of the Customs Station in any matter pending before such official or his subordinates by the use of threat, false accusation, duress or the offer of any special inducement or promise of advantage or by the bestowing of any gift or favour or other thing of value; (j) not refuse access to, conceal, remove or destroy the whole or any part of any book, paper or other record, relating to his transactions as a Custom House Agent which is sought or may be sought by the Commissioner; (k) maintain records and accounts in such form and manner as may be directed from time to time by an Assistant Commissioner of Customs or Deputy Commissioner of Customs and submit them for inspection to the said Assistant Commissioner of Customs or Deputy Commissioner of Customs or an officer authorized by him whenever required; (l) ensure that all documents prepared or presented by hi....
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.... and not less than Rs. 50,000/- in the case of second group. Secondly, as could be seen from the definition of CHA in the Act and in Regulation 10(2)(b), the area of activity of a CHA is limited to 'at any Customs Station' and 'at the place of clearance of goods'. These unambiguous terms expressly limit the role and responsibility of the CHA to the ports for which he or it has been given licence. In taking this view, we are fortified by the judgment of the Calcutta High Court in D. Sengupta v. Collector of Customs and others - 1987 (31) E.L.T. 30 (Cal.) with which we are in respectful agreement. Paragraphs 34 and 35 of the said judgment read : ……..The clearing agent is not a person within"34. the meaning of Section 124 of the said Act for the purpose of service of notice after the goods have been assessed and cleared from the customs. Under Section 2(c) of the Customs House Agents Licensing Regulations, 1984 "Customs House Agent" means a person licensed under these regulations to act as agent for the transaction of any business relating to the entry or departure of conveyance or the import or export of goods at any customs station. Custom station has been defined in Secti....
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.... Licence was issued to the petitioner-company not under the provisions of the Act, but under the provisions of the Registration of Multi-model Transport Operators Rules, 1992. 13.We are also not in agreement with the contention of the learned Counsel for the petitioner that the impugned public notice is issued by the Commissioner without any authority of law and, therefore, ultra vires of the Act. The Commissioner by issuing the impugned public notice has prescribed the procedure to be followed at the ICD, Reddipalem, Guntur for exports/imports. The said notice, in our considered opinion is in conformity with the Rules framed by the Board and the Circulars issued by the Ministry of Finance, dated 30-6-1995, 14-12-1995 and 4-8-1998. The Circular of Ministry of Finance, dated 14-12-1995 reads : "Guidelines on undertaking to be given by the Custodians before being appointed as Custodians of ICDs/CFS/EPZs. 1. The custodian should provide safe, secure and spacious premises for loading/unloading/storing of the cargo. The infrastructure for loading/unloading and storage operations should be designed to handle a minimum traffic of at....
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....ll provide free furnished office space for the Customs Department; 12. Residential accommodation for the customs staff posted in the area shall also be provided for by the custodian, wherever requisitioned by the Commissioner of Customs; 13. Free suitable transport from the nearest railway-head or suitable point shall be provided for the customs staff by the custodian; 14. In the ICD/CFS/EPZ the custodian shall make adequate arrangements for sanitary facilities, water supply and other allied facilities, including canteen facility, for the officers working in the area; 15. Custodian shall not charge any rent/demurrage on the goods detained by Customs Department under the Customs Act or any other Act for the time being in force. However, the Customs Department shall pay the rent to the Custodian after the ownership of the goods vests in the Government after confiscation. The rate of rent for such goods shall be fixed by the Commissioner in consultation with CPWD or local Revenue or Rent Control authorities; 16.  ....
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....th the instructions issued by the competent authority i.e., Ministry of Finance and the Central Board of Excise and Customs. 15.Mr. S. Ravi, learned Counsel for the petitioner, placing reliance on the Circular issued by the Board dated 16-5-1994 would maintain that there are no restrictions to transport the export Containers stuffed at Exporters' premises and sealed by the Customs or Central Excise officers to an Airport, an ICD or CFS for export. The above Circular issued by the Ministry of Finance, apart from Department of Revenue and Central Board of Excise and Customs, does not deal with the movement of goods from ICDs to gateway port. Circular No. 57/98, dated 4-8-1998 has laid down the exact procedure for movement of export cargo by Containers/trucks from ICD to Gateway ports/Airports vide clauses therein. Para 1(iii) and Para 2 of the Circular dated 16-5-1994 reads :- Movement of stuffed containers from"(iii) exporters' premises to ports : Certain questions have been raised regarding restrictions being placed on the mode of transport of containers stuffed at exporters' premises for moving to a port, an airport, an ICD or a CFS for export. It is hereby clarified t....
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.... fundamental right to insist upon the Government or the Governmental authorities or any other individual for doing business with him. Any individual, as well as the Government and the Governmental authorities, has got a right to enter into a contract with a particular person or determine the person with whom he or it will deal; and no citizen has a fundamental right to insist upon the Government doing business with him as held by the Supreme Court in Devata Singh v. Chief Justice - AIR 1962 SC 201. Similarly, there is no substance in the contention of the petitioner that creation of monopoly in favour of CONCOR has resulted in discrimination violating Article 14 postulates. The Ministry of Finance DOR Circular No. 128/95, dated 14-12-1995, in fact, lays down that ICS/CFS could be established by the private sector also. It is stated in the counter-affidavit filed by the 2nd respondent that in fact in Chennai itself there are about 8 ICDs/CFSs functioning with some of them being operated by private firms. It is also stated that similar facilities can be created in Guntur also if the petitioner fulfils the requirements. Therefore, no exception can be taken in empowering the 2nd respon....
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.... the Government or statutory authorities, as such, is not justiciable unless such policy decision is capricious, arbitrary, whimsical so as to offend Article 14 of the Constitution or any statutory or constitutional provision. The only thing to be seen by the court when a policy decision is assailed is whether the policy in question is arbitrary or violative of any mandatory provisions of law. In Tata Iron & Steel Co. Ltd. v. Union of India - (1996) 9 SCC 709, it was held that unless policy decision is inconsistent with constitution or law, court must exercise jurisdiction with circumspection, particularly where legal issues are inter-twined with policy decision and technical issues. In Sitaram Co. v. Union of India - AIR 1990 SC 1277, the Apex Court held that the court does not possess the expertise required to determine the matter, and the determination has been made by experts appointed by the Government. In Sher Singh v. Union of India - (1995) 6 SCC 515, the court opined that there shall be no judicial review if the policy decision is neither unfair nor mala fide. In A.M.S.A. Karmachari Santh v. State - (1996) 9 SCC 186, the Court has opined that a policy decision shall not be....