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TMI Blog2020 (8) TMI 657X X X X Extracts X X X X X X X X Extracts X X X X ..... Cargo and Customs Areas Regulations, 2009 will not be applicable to them, since the Regulations would be applicable to any person who fulfills the ingredients of the definition clause of a CCSP. If that be so, Regulation 5(5) mandates such a person to comply with the provisions and abide by all the provisions of the Act including the rules, regulations, notifications and orders issued therein. Thus, a combined reading of the Regulation 2(b) and 5(5) along with Regulation 6(1)(l) would qualify the third respondent to be a CCSP. In similar situations, when statutory regulations came to be violated by a CCSP and the maintainability of a Writ Petition against the CCSP was questioned before this Court in Balaji Dekors' case [ 2017 (8) TMI 686 - MADRAS HIGH COURT ] , this Court has held that the matter involved is not contractual but involves the implementation of the statutory regulation and therefore, the Writ Petition would be maintainable. Whether the third respondent is justified in withholding the delivery order for the 1x40' container, by insisting for clearance of the dispute against the 2x20' containers? - HELD THAT:- The cause of action for the present w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... RAMESH For Petitioner : Mr. A.K.Jayaraj For Respondent Nos.1 2 : Mr. S.R. Sundar For Respondent No.3 : Mr.Bijai Sundar With the consent of both the parties, the present Writ Petition is heard through Video Conferencing on 30.07.2020. 2. The brief facts of the case are as follows: The petitioner had imported one container Low Aromatic White Spirit from UAE, through the third respondent, vide Bill of lading No. ACL/JAE/MAA-766/20. The cargo, which was in a 40' container, arrived at Chennai Port on 16.03.2020. Though the petitioner had paid the delivery charges of ₹ 50,593/- on 22.04.2020, the third respondent had failed to issue the delivery order. According to the third respondent, two other shipments were entrusted to them for carriage in 2x20' containers vide Bill of lading No. ACL/JEA/KAT-429 dated 04.02.2020, for which the petitioner had neither paid the detention charges nor returned the two containers. 3. The Director General of Shipping had issued advisories for non charging of containers' detention charges on import and export from 22.03.2020 to 03.05.2020, owing to the COVID-19 pandemic situation. The Customs Department ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner is bound to settle. 7. While the petitioner is aggrieved against non issuance of the delivery order for the 1x40' container, the third respondent is aggrieved against the non payment of the detention charges and non return of the 2x20' containers. 8. Before adverting to the grounds raised by the petitioner vis-a-vis the relief claimed for, it would be appropriate to deal with the preliminary objections raised by the third respondent with regard to maintainability of the Writ Petition. According to them, they are only freight forwarder and delivery agent and not amenable to writ jurisdiction. The learned counsel would submit that the grievance of the petitioner is a breach of contractual obligations and therefore, the Writ Petition is not maintainable. Contrary to the claim made by the petitioner, the third respondent is not a Customs Cargo Service Provider (hereinafter referred to as CCSP) under the Handling of Cargo and Customs Areas Regulations, 2009. In support of such a contention, the learned counsel for the third respondent drew attention of this Court to Regulations 5 6 which pertains to the conditions and responsibilities to be fulfilled by a CC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bide by all the provisions of the Act including the rules, regulations, notifications and orders issued therein. In Preichi Gounder Memorial case (supra), this Court had held that both CFS and Steamer Agent would qualify as a CCSP and are required to implement the orders of the Customs Department. The relevant portion of order reads thus:- 18.Section 2(b), which defines Customs Cargo Services Provider says any person responsible for receipt, storage, 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. 19.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. .... 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. 12. Regulations ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a Regulation, 2009, the custodian shall not charge rent or demurrage for the goods under detention. The custodian in the instant case are respective third respondent in both the Writ Petitions. It is the submission of the petitioner that, though such a specific order has been issued by the department for grant of waiver, the respective third respondents have not granted full relief to the petitioner in terms of the directive of the Department. 8. Regulation No.6 of the Handling of Cargo in Customs Area Regulation, 2009, provides for Responsibilities of Customs Cargo Service Provider . In terms of Regulation 6(1)(l), the customs cargo service provider shall subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive Officer or Examining Officer as the case may be. 9. The second respondent, in no uncertain terms, has certified that the goods were detained by the SIIB from 02.12.2016 to 27.12.2016 and issued an order on 28.12.2016 that the custodian (third respondent) shall not charge rent or demurrage for goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oint Commissioner of Customs reported in 2018 (360) ELT 962 (Mad); Giri Dhari Homes Pvt. Ltd., Vs. Principal of Commissioner of Customs [2018 (361) ELT 463 (Mad) and Isha Exim Vs. ADG, Chennai [2018 (13) GSTL 273 (Mad). 16. In all these aforesaid decisions, the learned counsel for the third respondent submitted that the facts involved therein, are not applicable to the facts in the present case and therefore reliance cannot be laid on these decisions. I am not in agreement with such a submission. 17. It is a settled proposition of law that it is the ratio decidendi of a judgment which forms a precedent. It is such decidendi of a judgment which forms a precedent. It is such underlying principle in the decision which would have a binding effect of a precedent. The facts of a case may differ from one precedent to another, which facts will not form part of the ratio decidendi. The facts of a case may be relevant only to ascertain as to whether a judgment is in personam or in rem. In Booz-Allen Hamilton Inc. Vs. SBI Home Finance Ltd. reported in (2011) 5 SCC 532, the Hon ble Supreme Court had held, a judgment in personam' as a judgment against a person as distinguishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tainers with that of the 1x40' container and thereby refrained from issuing the delivery order for the 1x40' container. The learned counsel for the third respondent claims that their correspondences with the petitioner was comprehensive, touching upon both causes of action pertaining to the 1x40' and 2x20' containers. Such a submission is opposed to the ratio laid down in A.K.Gupta's case (supra) and Sidramappa's case (supra) and thus, comprehensive correspondences or demand, for two distinct causes of action, will not entitle the third respondent to combine these distinct causes and thereby, attempt to deny the petitioner for the relief. Thus, the third respondent s claim of ₹ 27,23,893.42/- as the consolidated 23. The third respondent also claims to have granted waiver of the detention charges for the 1x40' container during the Covid19 lock down period, pursuant to the order of the Government of India, DGS and MOS Circulars, as well as the orders of the Commissioner of Customs, Chennai, which is also not disputed by the petitioner, which is not disputed by the petitioner. Thus, if the petitioner is granted liberty to settle the entire outstand ..... X X X X Extracts X X X X X X X X Extracts X X X X
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