2014 (2) TMI 702 - HC - Customs

Constitutional validity of recovery of cost of Custodian Charges - Regulation 5(2) of Regulations, 2009 - Petitioner has asserts that the cost component of the customs officials salary bill is not collected from the cargo operators at other airports namely Delhi, Mumbai, Chennai, Trivandrum, Ahmedabad and Cochin Airports - Liability of the custodian appointed in terms of Section 45 of the Customs Act, 1962, to pay for this cost recovery - Held that - Payment of one-time fee for appointment as a customs airport or for recognizing a person as a custodian of goods in a customs area is different from obligating such a person to pay regularly for the costs of the customs officers posted at the customs port or customs airport. Both are not the same - The concept of cost recovery is generally associated with the service rendered by a person or a set of persons or a public organization to another, which service is not otherwise liable to be provided. Assuming that what is levied is not a tax but a fee, it would be imperative to notice that a fee is a charge for special services rendered to individuals or organizations by some governmental agency or the other and such a charge has an element of quid pro quo ingrinded into it. It is true, that there is no grave distinction between a tax and a fee since both are compulsory exactions of money by public authorities. However, it will be appropriate to bear in mind that a tax is imposed as part of the scheme to garner revenue by the State or public authority for purposes of expending it to achieve and implement public purposes. Consequently, a tax is seldom supported by any considerations. With the expansion or advent of quality infrastructural inputs such as roads, highways network, etc., rapid industrialization and manifold increase of commercial activities can be expected as the most inevitable corollary. Industrialization and increased commercial activities can lead to increase of import and export activity. Both imports and exports of goods are subject to levy of duty. Thus, in the process, the State s revenue gets augmented, apart from increased economic activity and development of human resources. The increase in the quantum of imports and exports therefore has a direct proportionate impact upon the revenue garnering and overall development. It is purely incidental, that the custodian may in turn earn some revenue for himself by charging the importer or exporter for facilities provided by him for smooth and eventual clearance of goods by the customs. That is of least importance in the matter of collection of customs duty by the State. I am therefore clearly of the view that, no services are being specially provided by the customs officials to the custodians at a customs port or customs airport, to enable them to collect any fee, from such a custodian. Cost Recovery of the salaries and allowances paid to the customs officials is only a dignified form of collection of a fee. Since, no services are specially or generally provided to the custodian, no such fees is liable to be charged. Clearing the international passengers or goods, imported or meant for export is a sovereign function of the State. For purposes of effective and efficient discharge of these functions, the custodian is required to provide the necessary infrastructural facilities. Sans such facilities, the customs clearance duties become imminently impaired. Therefore, while a demand for making available standard infrastructural facilities for facilitating efficient discharge of customs clearance functions is legitimate, but however, demand of reimbursement of cost recovery is totally unjust. When the State directly pays to its employees, the State in turn expects absolute integrity and loyalty from such employees. In the case of employment between the State and its servants, it is appropriate to bear in mind that it is not regulated purely by contractual terms or by general conditions which are otherwise part of any master and servant relationship. There is a status conferred by the State upon its employees. By virtue of this status, it undertakes to protect them from undeserved and undesirable wants. Therefore, a provision is made in the budgetary proposals annually towards the head of their salaries and pensions - Regulation 5(2) of Regulations, 2009 has no legal substratum to survive and accordingly the consequential levy made on the petitioner by the respondents towards cost recovery charges is wholly unsustainable - Decided in favour of petitioner.

Summary

Issues Involved:

1. Legitimacy of cost recovery charges imposed on the custodian.
2. Interpretation of relevant sections of the Customs Act, 1962.
3. Validity of Regulation 5(2) of the Handling of Cargo in Customs Areas Regulations, 2009.
4. Nature of the charges (tax vs. fee) imposed on the custodian.

Issue-wise Detailed Analysis:

1. Legitimacy of Cost Recovery Charges Imposed on the Custodian:

The petitioner challenged the imposition of cost recovery charges for the salaries and allowances of customs officers. The court examined whether the custodian, appointed under Section 45 of the Customs Act, 1962, is liable to bear these charges. The respondents argued that additional staff sanctioned for customs clearance at the new Green Field Airport justified the cost recovery charges. However, the court found that the custodian's role is primarily to ensure the integrity of the cargo and facilitate customs clearance, not to bear the cost of customs officers' salaries.

2. Interpretation of Relevant Sections of the Customs Act, 1962:

The court analyzed several sections of the Customs Act, 1962, including Sections 7, 8, 13, 33, 34, 45, 141, 142, 152, 156, 157, and 158. It emphasized that the Act does not explicitly authorize the imposition of cost recovery charges on custodians. Section 45 mandates the appointment of custodians to ensure the integrity of the cargo, but it does not stipulate that custodians must bear the cost of customs officers' salaries. The court also noted that Section 141(2) allows for the prescription of responsibilities for handling goods in customs areas but does not provide a basis for cost recovery charges.

3. Validity of Regulation 5(2) of the Handling of Cargo in Customs Areas Regulations, 2009:

Regulation 5(2) of the Handling of Cargo in Customs Areas Regulations, 2009, requires custodians to bear the cost of customs officers on a cost recovery basis. The court scrutinized whether this regulation falls within the general power of making regulations under Section 157 of the Customs Act. It concluded that while the Central Board of Excise and Customs has the authority to make regulations, these must be consistent with the Act's purposes. The court determined that Regulation 5(2) lacks legal substratum as the Act does not contemplate taxing custodians or imposing such charges.

4. Nature of the Charges (Tax vs. Fee) Imposed on the Custodian:

The court differentiated between a tax and a fee, noting that a tax is a compulsory exaction for public purposes without direct consideration, while a fee is a charge for specific services rendered. The court found that the cost recovery charges imposed on the custodian do not qualify as a fee since no special services are provided to the custodian by the customs officials. The charges are essentially a dignified form of fee collection without a corresponding service, making them unjustifiable.

Conclusion:

The court concluded that the imposition of cost recovery charges on the petitioner is unsustainable. It held that Regulation 5(2) of the Handling of Cargo in Customs Areas Regulations, 2009, lacks legal basis and that the consequential levy on the petitioner is invalid. The writ petition was allowed, and the cost recovery charges were deemed unjustifiable.