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2024 (3) TMI 369 - HC - CustomsLiability to collect Terminal Handling Charges (THC) - Challenged the communication issued by the Commissioners of Customs from different Commissionerate s in the country - Validity of Public Notice issued by the Commissioner - Facility of paying terminal handing charges and other charges of the port terminal directly to the terminal operators instead of shifting through the Shipping Lines - Importers having AEO status availing DPD facility for containerized cargo - Power exercised by the Commissioners of different Commissionerate contrary to the letter and spirit of Section 143AA of the Customs Act, 1962 - Contractual relationship of Shipping Lines - violation of principles of natural justice - forum shopping - HELD THAT - A bare reading of the Section 143 AA of the Customs Act, 1962 would indicate that the Board may take such measures or prescribe separate procedures for fulfilling the conditions prescribed u/s 143AA of the Customs Act, 1962. The letter dated 13.01.2020 bearing reference D.O.No.CH(IC)/02/2020 as set out that above indicates that decision of the Board to implement the object of Section 143AA of the Customs Act, 1962. To implement Section 143AA of the Customs Act, 1962 delegation u/s 152 of the Customs Act, 1962 is not required, although the Central Government can also to delegate the power to officers u/s 152 of the Customs Act, 1962. Section 143AA of the Customs Act, 1962 is an independent provision and confers independent power. Any decision of the Board has to be in consonance with the Rules under Section 4(1) of the Central Board of Revenue Act,1963. As per Section 4(1) of the Central Board of Revenue Act,1963, the Central Government has to make Rules for the purpose of regulating the business of the Board and every order made or act done in accordance with the such rules by the Board shall be deemed to be order or act, as the case may be of the Board. Therefore, there is no requirement for delegation of powers as the Commissioners are merely carrying out the instructions of the Board to implement the policy decision of 'ease of doing business. The Board cannot function independently. It has to strictly act in accordance with the Rules of Transaction as is contemplated u/s 4(1) of the Central Board of Revenue Act, 1963. As a matter of fact, the Cabinet Secretariat has issued Government of India (Allocation of Business) Rules, 1961. Department Of Revenue is specifically vested with the Central Board of Indirect Taxes and Customs and with the Central Board of Direct Taxes. The impugned Public Notices have been issued in public interest. The impugned Public Notices merely extends the facility/option to importers and exporters. They are not bound to avail the said option. The impugned Public Notices has been issued in view of the Government's avowed policy decision for facilitating Ease of Doing Business in the country. The impugned Public Notices motivated with the object to implement Section 143AA of the Customs Act, 1962. However, it has not been demonstrated that the above communication dated 13.01.2020 bearing reference D.O.No.CH(IC)/02/2020 of Chairman of the Board was issued in violation of the Government of India (Allocation of Business) Rules, 1961 or any other Rule framed under Section 4(1) of the Central Board of Revenue Act, 1963. The decision of the Board has been implemented uniformly by All the Commissionrates in unison. The purposes for which the impugned public notices have been issued are in line with the object of section 143AA of the Customs Act, 1962. Therefore, the impugned Public Notices is / are not arbitrary. Unless, the Amendment to Customs Act, 1962 vide section 97 of the Finance Act, 2018 is itself struck down as ultra vires either the Constitution or any of the other provisions of the Customs Act, 1962, the impugned public notices cannot be struck down on the grounds raised in these writ petitions even if there was a minor infraction of the procedure under the Government of India (Allocation of Business) Rules, 1961. In my view, there are no merits in these Writ Petitions. That apart, having filed before the High Court of Kerala on the same cause of action and having failed and having filed before the Hon ble Division Bench of the Kerala High Court, these Writ Petitions have to fail. The filing of Writ Petitions before this Hon'ble High Court and the High Court of Kerala on the very same cause of action would amount to forum shopping. It is not proper. Therefore, on the ground of shopping also these batch of Writ Petitions are liable to be dismissed as the challenge before both the High Courts are very same. These writ petitions have to therefore fail and are liable to be dismissed. Therefore, these writ petitions are dismissed.
Issues Involved:
1. Challenge to the Impugned Public Notices issued by various Commissioners of Customs. 2. Jurisdiction and authority under Section 143AA of the Customs Act, 1962. 3. Allegations of forum shopping and res judicata. Summary: Challenge to the Impugned Public Notices: The petitioners challenged several Impugned Public Notices issued by different Commissioners of Customs across the country. These notices allowed importers with AEO status availing DPD facility for containerized cargo to pay Terminal Handling Charges (THC) directly to the terminal operators instead of through shipping lines, aiming to increase transparency and reduce logistics costs. Jurisdiction and Authority under Section 143AA of the Customs Act, 1962: The primary argument was that the Impugned Public Notices were issued without proper authority and contrary to the Customs Act, 1962. The petitioners contended that the notices were not backed by any order from the Central Board of Indirect Taxes and Customs (CBIC) as required under Section 143AA, nor was there any delegation of power under Section 152. The respondents defended the notices, stating they were issued based on a letter dated 13.01.2020 from the Chairman of CBIC, which aimed to implement Section 143AA by reducing transaction costs and facilitating trade. The court found that Section 143AA is a non-obstante provision empowering the Board to take measures to reduce transaction costs and that the letter from the Chairman was sufficient to justify the issuance of the notices. Allegations of Forum Shopping and Res Judicata: The petitioners had previously filed similar cases before the Kerala High Court, which were dismissed. The court noted that the petitioners' actions amounted to forum shopping and that the writ petitions were liable to be dismissed on the grounds of res judicata and forum shopping. Conclusion: The court concluded that the Impugned Public Notices were issued in line with the objectives of Section 143AA of the Customs Act, 1962, and were not arbitrary. The petitions were dismissed on the merits and on the grounds of forum shopping.
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