2023 (8) TMI 207 - HC - Customs

Issuance of Detention and Demurrage waiver certificate in favour of the importer - Constitutional Validity of Regulation 10(1)(l) of Sea Cargo Manifest and Transhipment Regulations, 2018 - seeking stay on effect to Regulation 10(1)(l) of Sea Cargo Manifest and Transhipment Regulations, 2018 until the final disposal of the matter - grievance of the petitioner is that the said certificates have been obtained on the basis of distorted facts and incorrect information and without appreciating the fact that prejudice was being caused to the petitioner by issuance of such detention and demurrage waiver certificate - HELD THAT - As the grievance of the petitioner is in regard to the issuance of the detention and demurrage waiver certificates and considering the facts, that it is the petitioner s assertion that such certificates ought not have been issued, it is deemed appropriate that the petitioner assails the said decision/order passed under the said Regulations by availing of the statutory remedy of an appeal under Regulation 14 of the Sea Cargo Manifest and Transshipment Regulations, 2018. The petitioner are permitted to approach the Customs, Excise and Service Tax Appellate Tribunal by filing an appeal in regard to the grievance of the petitioner. Let such appeal be filed within two weeks from today. In the event, such appeal is filed, let the same be adjudicated as expeditiously as possible and without an objection as to limitation, as the present proceeding were being pursued by the petitioner bonafide. All contentions of the petitioner are expressly kept open. Vires of the assailed statutory provisions - HELD THAT - This is a critical relief which need not be gone into considering our aforesaid observations and at this stage of proceedings. Such challenge as raised by the petitioner are kept open to be asserted in the event the need for the petitioner so arises, to challenge the vires of the provisions in future. Appeal disposed off.

Summary

Issues:
The primary cause of action is the issuance of Detention and Demurrage waiver certificates in favor of the importer, which the petitioner alleges were obtained based on distorted facts and incorrect information, causing prejudice to the petitioner. The petitioner is further aggrieved by a communication from the Joint Commissioner of Customs enforcing the waiver certificate, which the petitioner deems coercive.

Judgment Details:
The petitioner filed a petition under Article 226 of the Constitution seeking various reliefs, including a declaration that Regulation 10(1)(l) of Sea Cargo Manifest and Transhipment Regulations, 2018 is ultra vires to the Customs Act, 1962 and violates fundamental and legal rights guaranteed under the Constitution of India. The petitioner also requested a writ of mandamus directing the respondent department not to implement the regulation until final disposal of the matter.

The High Court observed that the petitioner's grievance primarily revolves around the issuance of the detention and demurrage waiver certificates and the subsequent communication from the Joint Commissioner of Customs. The Court directed the petitioner to avail the statutory remedy of an appeal under Regulation 14 of the Sea Cargo Manifest and Transshipment Regulations, 2018, allowing the petitioner to approach the Customs, Excise and Service Tax Appellate Tribunal within two weeks to challenge the decision/order regarding the certificates.

Regarding the challenge to the vires of the statutory provisions, the Court decided not to delve into this critical relief at that stage of proceedings, allowing the petitioner to assert such challenge in the future if necessary. The Court kept all contentions raised by the petitioner open for future assertion. Additionally, the Court mentioned that the petitioner could move an Interim Application in the appeal before the Tribunal if any action was taken by the respondents based on the certificates in question.

In conclusion, the High Court disposed of the matter without costs, permitting the petitioner to appeal to the Customs, Excise and Service Tax Appellate Tribunal and keeping all contentions open for further proceedings.