2016 (12) TMI 520 - HC - Customs

Implementation of facility notice - It is stated that as per this Facility Notice issued on 3rd May, 2011, the importers have been given a liberty to take their goods to a Container Freight Station of their choice provided such intimation is given to the shipping lines 72 hours prior to the arrival of the vessel. However, even after issuance of the Facility Notice by the 2nd Respondent, the shipping lines are not complying with the instructions - It is stated that the vessel owner along with other information as provided in the Import General Manifest has to also inform the proper officer about the nominated CFS where imported goods will be stuffed once they reach the Indian Port. Generally, the shipping agents choose the CFS on behalf of the importers and after getting the permission from the Assistant / Deputy Commissioner the goods are unloaded at the Ports and are brought to the CFS, stacked therein after verification by the customs authorities under the bond. Thereafter, the CFS allows destuffing of the goods and after the formalities of assessment and payment of customs duty are made, the goods can be moved out. The custodian releases the goods from CFS by issuing them a gate pass. However, the shipping lines themselves choose the CFS of their choice with whom they have a tie up and intimate to the Customs Authorities that there is no say from the importers. It is therefore apparent that the CFS operators near several ports may be paying a nomination premium to shipping lines to get business and have been recovering the money from the importers making the import costlier. Held that - We do not think that we can resolve the contractual disputes. The Petitioner essentially has a contractual dispute but if several importers and over a passage of time are complaining about the working of the system which is evolved by the Facility Notice, then, surely the customs and competent authority managing the customs house at the port can look into and rather should look into these grievances. Therefore, without in any manner expressing any opinion with regard to the contractual dispute, since there are day to day and practical difficulties projected in implementing the Facility Notice, we direct the competent authority or the 2nd Respondent by himself to treat the present Petition and all annexures thereto as a complaint or representation in writing by the Petitioner importer. The competent authority shall take a decision on the same as expeditiously as possible and within a period of two months from the date of receipt of a copy of this order. With these directions the Writ Petition is disposed off.

Summary

Issues:
1. Implementation of Facility Notice No.69 of 2011 at Jawaharlal Nehru Customs House, Nhava Sheva.

Analysis:
The Writ Petition under Article 226 of the Constitution of India sought a writ of mandamus or any other appropriate writ to direct the authorities to unconditionally implement and enforce Facility Notice No.69 of 2011. The Petitioner, a long-time importer, faced difficulties as shipping lines refused to abide by the Facility Notice despite its issuance. The Notice allowed importers to choose a Container Freight Station (CFS) of their choice with prior intimation to shipping lines, but compliance was lacking. The Petitioner highlighted the process where shipping lines, not importers, chose the CFS, potentially increasing import costs due to nomination premiums paid by CFS operators to shipping lines. Despite previous judgments addressing similar grievances, the Court acknowledged the need for authorities to address importers' complaints and practical difficulties arising from the Facility Notice.

The Court clarified that it couldn't resolve contractual disputes between the Petitioner and shipping lines but directed the customs authority to consider the Petitioner's grievances outlined in the Writ Petition. Emphasizing the need for authorities to address day-to-day practical difficulties faced by importers due to the Facility Notice, the Court instructed the competent authority or the 2nd Respondent to treat the Petition and its annexures as a written complaint or representation by the Petitioner. The competent authority was mandated to make a decision expeditiously within two months from the date of the Court's order. Consequently, the Court disposed of the Writ Petition with these directions, focusing on the need for prompt resolution of importers' grievances related to the implementation of the Facility Notice.