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TMI Blog2014 (4) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... and the importer would be entitled to be considered for its benefit provided a certificate entitling him to be so considered is issued by the custom authorities. The importer would not be automatically exempt but would be covered under the Policy for Waiver and eligible for waiver which would be granted subject to other compliances. Where the importer is clearly at fault and fine, penalty, personal penalty and/or warning is imposed by the customs authorities, making the regulations applicable and granting the benefits of waiver would be clearly unreasonable and would grant benefit of waiver, with the person who has provided space suffering. This was and is not the intention and purpose behind HCCAR. Regulation recognises and accepts that any other law in force is not abrogated or repealed. The existing provision applicable stands protected. Petitioner shall be entitled to release of the goods by furnishing a security bond and a Bank Guarantee securing the demurrage charges and undertaking that the Petitioner would pay the demurrage charges in case on conclusion of the adjudication proceedings any fine, penalty, personal penalty and/or warning is imposed by the customs author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aration. During investigation, it was found that the address given in the import documents of the petitioner was incorrect and 2000 pieces of memory cards of 4GB capacity were concealed in the mobile phones. 5. The petitioner challenged the aforesaid seizure and filed a writ petition in this Court bearing WP(C) No. 2548/2012. By order dated 30.04.2012, this Court disposed of the said writ petition with a direction to the respondents to consider the said writ petition as a representation and to decide the same expeditiously. 6. The Deputy Director of Directorate of Revenue Intelligence by communication dated 18.07.2012 requested the Commissioner of Customs (Import General) to release the goods provisionally on terms and conditions to be decided at their end. The office of Commissioner of Customs by its letter dated 05.10.2012 communicated to the petitioner the decision of the competent authority which had directed the release of the goods provisionally on execution of a provisional duty bond guarantee of Rs. 15,00,000/-.Pursuant to the direction for release of the goods, the petitioner approached the Deputy Director of Directorate of Revenue Intelligence for issuance of dire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authorities delayed the deposit of the customs duty on the ground that amended bill of entry was not ready. On 08.03.2013, i.e. after five months of the deposit of the penalty and redemption fine, the petitioner was directed to deposit Rs. 12,86,196/- under the heading Customs Duty which duty is stated to have been deposited on the same day. 12. On 11.03.2013, the petitioner requested the customs authorities to direct CELEBI to release the said consignment without payment of any demurrage charges. By order dated 12.03.2013, the Commissioner of Customs, directed CELEBI not to charge any rent or demurrage in terms of its HCCAR, 2009. 13. The CELEBI did not accede to the request of the petitioner and the direction of the customs authorities and directed the petitioner to pay charges amounting to Rs. 71,14,065/- vide their Receipt of Processing Charges dated 15.03.2013. The petitioner protested against the said demand and on failure of the respondents to waive of the demurrage charges filed the present writ petition. 14. The stand of the respondent CELEBI is that it is bound by the policies, instructions, guidelines, circulars, notifications and regulations formulated by M ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... without the payment of demurrage charges is contrary to the provisions of Notification No.26/2009-Cus (N.T.) dated 17.03.2009 named as Handling of Cargo in Customs Area Regulation 2009 who has undertaken to comply with the provisions of Regulations 2009 under condition 5 6 of the said regulation. 11. It is further submitted that the Customs Department inserted condition of not charging demurrage on detained/seizure goods on Superdginama while handing over the goods to Respondent No.4 (CELEBI) for safe keeping till adjudication of the case or produce the goods whenever called upon by the Customs in exercise its powers under the Handling of Cargo in Customs Area Regulation 2009. 19. For the purposes of elucidation and understanding the real controversy, it is necessary to examine various statutory provisions, regulations and policies briefly. 20. Section 2 Sub Section 11 of the Customs Act, 1962 defines Customs Area as under: customs area means the area of a customs station and includes any area in which imported goods or export goods are ordinarily kept before clearance by Customs Authorities. 21. Section 2 Sub Section 43 of the Customs Act, 1962 defines Warehous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 25. Section 49 of the Customs Act, 1962 lays down as under: 49. Storage of imported goods in warehouse pending clearance. Where in the case of any imported goods, whether dutiable or not, entered for home consumption, the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time, the goods may, pending clearance, [be permitted to be stored for a period not exceeding thirty days in a public warehouse, or in a private warehouse, if facilities for deposit in a public warehouse are not available; but such goods shall not be deemed to be warehoused goods for the purposes of this Act, and accordingly the provisions of Chapter IX shall not apply to such goods: Provided that the Commissioner of Customs may extend the period of storage for a further period not exceeding thirty days at a time. 26. Section 57 and 58 of the Customs Act, 1962 lay down as under: SECTION 57. Appointing of public warehouses. At any warehousing station, the Assistant Commissioner of Customs or Deputy Commissioner of Customs may appoint public warehouses wherein dutiable goods may be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a customs area subject to control of officers of customs. (1) All conveyances and goods in a customs area shall, for the purpose of enforcing the provisions of this Act, be subject to the control of officers of customs. (2) The imported or export goods may be received, stored, delivered, despatched or otherwise handled in a customs area in such manner as may be prescribed and the responsibilities of persons engaged in the aforesaid activities shall be such as may be prescribed. 29. Section 141 of the Customs Act, 1962 stipulates that the conveyances and goods in a customs area are subjected to the control of the officers of customs and are to be handled in a customs area in such a manner as may be prescribed and responsibilities of a person engaged in the receiving, storing, delivering, despatching and otherwise handling import or export goods in customs area shall be such as may be prescribed by the customs authorities. 30. The above noted sections of the Customs Act postulate a scheme or a procedure whereby goods which are imported into a customs area immediately come into the control and power of the officers of the customs. The customs authorities are empowered unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Cargo Terminal of the said airport. CELEBI handles Cargo at the terminal and provide service relating to processing, storage and follows the instructions, guidelines, circulars and notifications formulated by Ministry of Civil Aviation. CELEBI collects charges as per the orders, directions, policies, guidelines and regulations formulated by Ministry of Civil Aviation, AERA, AAI, and pays the same to DIAL and DIAL in turn pays the same to AAI. 36. The AAI has framed regulations in exercise of powers conferred under the AAI Act. The regulations relied upon by the respondent CELEBI as applicable to the present case are the Airports Authority of India (Storage and Processing of Cargo, Courier and Express Goods and Postal Mail) Regulations, 2003 (hereinafter referred to as, the Regulation ). As per the said Regulation, the Airport Authority fixes the charges for processing of the Cargo and also formulates Policy for Waiver of such demurrage charges. The relevant portion of the policy relating to waiver of demurrage charges (Cargo) lays down as under: 10.1 GENERAL 10.1.1 Subject to such policy, rules and procedures as may be described the authorities specified hereunder are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... demurrage charges is a part specifically deals with the Storage and Processing of Cargo, Courier and Express Goods and Postal Mail. The Airport Authority fixes the charges for processing of the Cargo and has thus formulated the Policy for Waiver of such demurrage charges. 42. The custom authorities it appears issues certificate for waiver in every type of case irrespective of the fact whether the importer is at fault or not. The custom authorities have issued certificate for waiver of the demurrage charges in both the cases at hand. In one case the release of the goods are on provisional basis pending adjudication and in the other there is imposition of both fine and penalty. These are not cases where the importer has been held to be not at fault. In one case the Importer has been found to be at fault and penalty and fine imposed. The importer has accepted the said order. In the other case adjudication proceedings are pending and are yet to be finalised. 43. There is an overlap in the Policy for Waiver framed by AAI and the HCCAR. Though initially there appears to be a conflict between the policy and the regulations but on closer scrutiny it is apparent that they can both be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of India and the execution of the Superdginama by an employee would not override the policy. It would be applicable in cases where no fine, penalty, personal penalty and/or warning is imposed by the customs authorities. In cases where the importer is found eligible for the benefit of the Policy, the Superdginama would automatically become applicable. 49. Where the importer is clearly at fault and fine, penalty, personal penalty and/or warning is imposed by the customs authorities, making the regulations applicable and granting the benefits of waiver would be clearly unreasonable and would grant benefit of waiver, with the person who has provided space suffering. This was and is not the intention and purpose behind HCCAR. Regulation recognises and accepts that any other law in force is not abrogated or repealed . The existing provision applicable stands protected. 50. To sum up: (1) In cases where on conclusion of the adjudication proceedings there is no imposition of any fine, penalty, personal penalty and/or warning by the customs authorities: (i) the Policy for Waiver would be applicable; and (ii) the importer would be entitled to be considered for its benefit whe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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