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2023 (2) TMI 681 - HC - CustomsSeeking immediate release of goods without charging demurrage/detention charges or rent - policy of CONCOR - direction to pay appropriate compensation for their negligence and apathy leading to perishing/deterioration of goods - seeking initiation of appropriate action against respondent no. 2 for suspension/revocation of approval as Customs Cargo Service Provider for the violation of provisions of Handling of Cargo In Customs Area Regulations, 2009 in as much, the demurrage/detention charge has been imposed in respect of goods in respect of which detention certificate has duly been issued by the Customs. If a penalty is imposed by the Settlement Commission and not by any custom authority, then will it entitle the Petitioner for waiver of TSC? HELD THAT - The Regulation 6(1)(l) of HCCAR, 2009 provides that no rent, demurrage on the goods seized or detained or confiscated shall be charged subject to any other law in force at the time being. Therefore, this regulation is subject to Section 63 of Customs Act which provides for the right of warehouse keeper to levy rent and warehouse charges and Section 63 was in force when CONCOR denied the waiver of TSC to the Petitioner. On perusal of Section 127F of the Customs Act, it is clear that the Settlement Commission is provided the power to impose any penalty or fine under the Customs Act only. Further, Section 127F of the Customs Act explicitly states that in addition to powers conferred on the Settlement Commission under Central Excise Act, 1944, the Settlement Commission also have all the powers which are vested in an officer of the customs under the Customs Act or the rules made thereunder. Therefore, the Settlement Commission is acting as a custom authority only while settling the cases under the Customs Act as it has all the powers that are vested in officer of the customs. This Court does not agree with the contention of the learned counsel for the Petitioner that when the penalty is imposed by the Settlement Commission which is an independent body constituted under the Section 32 of Central Excise Act, 1944, then the policy of CONCOR would not apply to the Petitioner. It is held that even if the penalty is imposed by the Settlement Commission then the same has been imposed by the Settlement Commission by exercising the power vested in it of the officer of the customs and thus, penalty imposed by the Settlement Commission would be treated as a penalty imposed by a custom authority. Further, it is to be noted that CONCOR was established in 1988 under the Ministry of Railways to profitably satisfy customer s needs for high-quality, cost-effective logistics services. CONCOR spent huge expenditure in developing of ICD infrastructure to provide container/ cargo handling and storage services to the importers and exporters. CONCOR also ensures safety and security of the cargo while it is lying at ICDs. Concor incurs huge expenditure while performing its functions and its main source of revenue is container/ cargo handling and storage services rendered to customers - If the contention raised by the learned counsel for the Petitioner would be accepted then it will cause huge losses to CONCOR which has been formed from public exchequers. The contention of the learned counsel for the Petitioner that if the penalty has been imposed by the Settlement Commission then the policy of CONCOR for not entertaining the request of waiver of demurrage/ detention charges would not be applicable, is not acceptable. Petition dismissed.
Issues Involved:
1. Waiver of demurrage/detention charges. 2. Compensation for negligence and apathy leading to perishing/deterioration of goods. 3. Action against respondent for violation of Handling of Cargo in Customs Area Regulations, 2009 (HCCAR, 2009). Issue-wise Detailed Analysis: 1. Waiver of Demurrage/Detention Charges: The petitioner sought the release of goods without charging demurrage/detention charges, citing Regulation 6(1)(l) of HCCAR, 2009, which states that no rent or demurrage should be charged on goods seized or detained by customs. The petitioner argued that CONCOR, as a Customs Cargo Service Provider, is bound by these regulations and should waive the charges once a detention certificate is issued by customs. CONCOR countered that Section 63 of the Customs Act, 1962, which was in force at the time, empowers warehouse keepers to levy rent and warehouse charges. They argued that Regulation 6(1)(l) of HCCAR, 2009, is subject to any other law in force, including Section 63. Therefore, CONCOR's policy of not waiving charges in cases where penalties or fines were imposed by customs authorities was not in violation of any legislation. The court agreed with CONCOR, stating that Regulation 6(1)(l) of HCCAR, 2009, is subject to Section 63 of the Customs Act, which was in force when the waiver was denied. The court also referred to the Division Bench's decision in Trip Communication Pvt. Ltd. Vs Union of India, which supported the view that if penalties or fines are imposed, the importer is liable to pay the charges. The court held that the Settlement Commission, while imposing penalties, acts as a customs authority, making the petitioner's case ineligible for waiver under CONCOR's policy. 2. Compensation for Negligence and Apathy Leading to Perishing/Deterioration of Goods: The petitioner claimed compensation for the deterioration of goods due to the negligence and apathy of the respondents, particularly the delay in issuing the provisional release order and the harsh conditions imposed for release. The court dismissed this claim, stating that the negligence and apathy of the respondents cannot be adjudicated in a writ proceeding under Article 226 of the Constitution of India. 3. Action Against Respondent for Violation of HCCAR, 2009: The petitioner sought action against the respondent for violating HCCAR, 2009, by imposing demurrage/detention charges despite the issuance of a detention certificate by customs. The court found no violation of HCCAR, 2009, by CONCOR. It held that CONCOR's policy of not waiving charges in cases where penalties or fines were imposed was consistent with Section 63 of the Customs Act, which was in force at the relevant time. The court also referenced the decision in Monika India Vs Union of India, which stated that customs authorities can issue detention certificates but cannot direct Cargo Service Providers to waive charges. Conclusion: The court dismissed the writ petition, upholding CONCOR's right to levy charges under Section 63 of the Customs Act and finding no violation of HCCAR, 2009. The court also dismissed the claims for compensation and action against the respondent, stating that these issues cannot be adjudicated in a writ proceeding.
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