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TMI Blog2019 (8) TMI 787X X X X Extracts X X X X X X X X Extracts X X X X ..... torage, delivery, dispatch or otherwise handling of imported goods and export goods and includes a custodian as referred to in section 45 of said Act and persons as referred to in sub-section (2) of Section 141 of the said Act - A perusal of Section 2(b), read in conjunction with Sections 45 and 141(2) of said Act leaves no doubt in the mind of this Court that both CFS and the Steamer Agent would qualify as Customs Cargo Services Provider. There is also no disputation that they function under the control of the Customs Department. The import of the petitioner is for a hospital which is being run for economically less privileged strata of the society and it provides medical help by charging only actual cost of basic disposable products alone. In other words, for all practical purposes, writ petitioner is providing free medical treatment with a 50 bedded hospital and in instant case, consignment imported itself is a Used Dialysis Machine. This leaves this Court with the considered view that there are unique and peculiar facts and circumstances in this case. The consignment namely Used Dialysis Machine is directed to be given delivery to the writ petitioner without insisting on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed --- 114 cases Bellco Phylter Dialyzers included --- 12 cases Fresenius Optiflux Dialyzers included --- 10 cases B-D syringes included --- 7 cases JMS Harmony A-V Fistula Needle sets included --- 1 Large Case JMS Harmony A-V Fistula Needle set included --- 20 cases TORAY Hollow Fiber Dialyzers included --- 18 cases FRESENIU ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rajectory which has been set out here. 6. Be that as it may, there is no disputation or disagreement before this Court that writ petitioner had paid the redemption fine of ₹ 1,00,000/- besides the penalty of ₹ 20,000/- as per aforementioned order-in-original dated 23.03.2018. 7. To be noted, operative portion of the order-in-original extracted / reproduced supra, mentions about redemption Fine amounting to ₹ 1,00,000/-(Rupees One Lakh only) under Section 125(1) of 'Customs Act, 1962' [hereinafter 'said Act' for brevity], but learned counsel for writ petitioner submits that this is dovetailed with or intertwined with duty under 125(2) and that appropriate duty has also been paid. Payment of duty details is as follows: 8. To be noted, there is also no disputation or disagreement that the aforesaid order-in-original dated 23.03.2018 made by the Joint Commissioner of Customs has been given legal quietus or in other words, it has attained finality. 9. Under such circumstances, post above mentioned order-inoriginal made by the Joint Commissioner of Customs, 3rd respo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nfurled in the earlier hearing, proceedings dated 10.06.2018 were recorded, which reads as follows: 'Dr.S.Krishnanandh, learned counsel on record for writ petitioner and Mr.T.Pramod Kumar Chopda, learned Senior standing counsel for Central Board of Indirect Taxes and Customs(CBIC) on behalf of all the three respondents are before this Court. 2. As the hearing in the matter progressed, it came to light that the entire matter pertains to payment of Demurrage and Container Detention Charges. It is not in dispute that the respondents sent a communication dated 25.04.2018 to the writ petitioner's Steamer Agent with a copy marked to the Container Freight Station(CFS), where the consignment is now lying. 3. Learned counsel for writ petitioner fairly submits that copy of this communication was received by the writ petitioner on 28.04.2018. 4. Learned Revenue counsel submits that post 28.04.2018, nothing prevented the writ petitioner from taking delivery of the consignment and therefore, the writ petitioner cannot be heard to contend that the benefit of non payment of Demurrage and Container Detention Charges ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction with Sections 45 and 141(2) of said Act leaves no doubt in the mind of this Court that both CFS and the Steamer Agent would qualify as Customs Cargo Services Provider. There is also no disputation that they function under the control of the Customs Department. 20. In this regard, it is submitted by learned counsel for writ petitioner that the respondents have to ensure that their communication signed on 25.04.2018 is adhered to and implemented in letter and spirit. In support of his contention, learned counsel pressed into service two orders made by another Hon'ble Single Judge of this Court. One is reported in 2018 (13) G.S.T.L.273(Mad.) in the case of Isha Exim Vs. A.D.G., Directorate of Revenue Intelligence, Chennai [hereinafter 'Isha Exim case' for brevity] and the other is 2018 (361) E.L.T.463 (Mad.) in the case of Giridhari Homes Pvt. Ltd., Vs. Principal Commissioner of Customs, Chennai III [hereinafter 'Giridhari case' for brevity]. Relevant paragraphs in Isha Exim case are paragraphs 15 to 18 and the same read as follows: '15. The learned counsel appearing for the petitioner submitted that, s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected Writ Miscellaneous Petitions are closed.' 21. A perusal of Giridhari case also reiterates the same principle i.e., that the CFS and Steamer Agent have to necessarily implement the orders of Customs Department. 22. From the narrative thus far, it comes to light that import of the petitioner is for a hospital which is being run for economically less privileged strata of the society and it provides medical help by charging only actual cost of basic disposable products alone. In other words, for all practical purposes, writ petitioner is providing free medical treatment with a 50 bedded hospital and in instant case, consignment imported itself is a Used Dialysis Machine. This leaves this Court with the considered view that there are unique and peculiar facts and circumstances in this case. 23. In the light of the unique and peculiar facts and circumstances of this case, viewed in the light of context of the aforesaid two reported orders (alluded to supra), by another Hon'ble Single Judge, this Court is of the considered view that it is appropriate to direct the respondents to ensure that the CFS namely Manager, All Cargo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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