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TMI Blog2021 (7) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... n the business of imports, more particularly import of agricultural implements and equipments. They are favoured with an Import Export Code No.0909002924 dated 13.07.2015. The nature of transactions as described in the affidavit filed in support of the writ petitions are not disputed. However, the learned counsel for the respondents raised certain objections regarding the contractual obligations between the Customs Cargo Service Provider and the petitioner. In this context, the petitioner contended that once the Detention certificate is issued by the Customs authorities under Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009, then the third respondent has no option, but to honour the sames and release the goods without any further claim whatsoever. 3. To substantiate the said ground, the learned counsel for the petitioner contended that the certificate issued has got a statutory sanction and therefore, the Detention certificate issued, must be implemented in its letter and spirit. Thus, the relief as such sought for in the writ petition is to be granted. 4. The learned counsel for the petitioner strenuously contended that the relief as such sought for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... date of Regulation 10(1)(l) of the 2018 Regulations, more so when Regulation 10(1)(m) makes it clear that the authorised carrier shall be bound by the provisions of the Customs Act and all the rules, regulations, notifications and orders issued thereunder. 82. In the ultimate analysis, the issue boils down to a conflict between the 2018 Regulations which is a subordinate legislation having the force of law on the one hand and the contractual right of the shipping line on the other hand. 87. In the light of the above, we have no hesitation to hold that objection of respondent No.4 is not legally tenable. The detention cum demurrage waiver certificate dated 16th November, 2020 has been validly issued as it can be traced to Regulation 10(1)(l) of the 2018 Regulations and under Regulation 10(1)(m) thereof, respondent No.4 i.e., the shipping line is under a legal obligation to comply with the certificate. Thus, the detention cum demurrage certificate dated 16th November, 2020 is binding on respondent No.4. That apart, holding on to the goods of the petitioner by respondent No.4 post the detention cum demurrage waiver certificate dated 16th November, 2020 and levying detention ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ffectively used. 92. Thus, on a thorough consideration of the entire matter, we are of the view that the following directions will meet the ends of justice :- I) Respondent No.2 shall take all necessary steps and ensure that the detention cum demurrage waiver certificates dated 16.11.2020 are implemented by all concerned including respondent Nos.4 and 5 and thereafter to release the imported goods of the petitioner. Respondent No.2 shall ensure that the above exercise is completed within 15 days of receipt of a copy of this judgment and order. II) Respondent No.2 shall continue with the investigation into the complaint of the petitioner dated 3rd November, 2020 in accordance with law and take the same to its logical conclusion within a period of three months from the date of receipt of a copy of this judgment and order. On competition of the enquiry, a copy of the enquiry report shall be furnished to the petitioner. III) Considering the fact that customs authorities had promptly issued out of charge and the detention cum demurrage waiver certificates post the fresh order-in-original dated 6th November, 2020, we refrain from imposing cost on the customs authorities." 5. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent namely Used Dialysis Machine, which is subject matter of instant writ petition is given delivery to the writ petitioner without insisting on demurrage and detention charges even post 23.03.2018. The above direction shall be complied with by the respondents as expeditiously as possible and in any event, with a period of four(4) weeks from the date of receipt of a copy of this order." 8. The learned counsel for the third respondent disputed the contentions raised on behalf of the petitioners by stating that disputes are exists between the Customs Cargo Service Provider and the petitioner in the present case. The judgments relied on by the petitioner are not applicable with reference to the facts of the present case. Regarding the judgment of the Bombay High Court, the learned counsel for the third respondent reiterated that the Sea Cargo Manifest and Transhipment Regulations, 2018 came into force with effect from 11.05.2018 and the claims set out in the present writ petitions are prior to the said date of implementation and therefore, the reference made regarding the said Regulations, deserves no consideration. 9. The learned counsel for the third respondent relied on the count ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplicability, its eligibility and binding nature has been explained and the relevant said paragraphs are extracted hereunder: "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 harmoniously construed and coexist. 44. The policy makes a distinction between the cases where the importer is innocent but his imported goods are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 when the goods were seized, detained or earlier confiscated; and (iii) waiver would be granted subject to other compliances. (2) In cases where pending the adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anced by the respective learned counsels appearing on behalf of the parties to the lis, this Court is of the considered opinion that Regulation 3 of the Handling of Cargo in Customs Areas Regulations, 2009 states that "these regulations shall be applicable to the handling of imported and export goods in ports, airports, inland container depots, land customs stations and in customs areas approved or specified under section 8". Regulation 2(1)(b) defines "Customs Cargo Services Provider" means 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 the Act and persons as referred to in sub-section (2) of section 141 of the said Act. 12. Regulation 5 provides Conditions to be fulfilled by Customs Cargo Service Provider. Regulation 6 speaks about Responsibilities of Customs Cargo Service Provider. Thus, the Detention certificate issued under Regulation 6(1)(l), falls under the responsibilities of Customs Cargo Service Provider. Thus, the responsibility of the Customs Cargo Service Provider under Regulation 6(1)(l) is that "Subject to any other law for the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Handling of Cargo in Customs Areas Regulations, 2009. 17. The next question would be, whether issuance of a certificate would provide a cause for seeking the relief of refund directly under Article 226 of the Constitution of India. 18. Perusal of the certificate in the present writ petitions issued by the Customs Authorities in proceedings dated 05.06.2018 reveals that the "request of the Importer for waiver of Detention / Demurrage charges shall be considered from the date of filing of Bill of Entry till the date of clearance of the cargo". Therefore, the third respondents are obligated to consider the refund with reference to Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. However, mere certificate, undoubtedly would not confer any right to seek refund directly by filing a writ petition before the High Court under Article 226 of the Constitution of India. 19. Eligibility to claim refund is one aspect and right for such refund is another aspect. In between the eligibility and right, an adjudication is warranted with reference to any dispute exists between the parties based on the agreement or contractual obligations. Thus, Detention Certifi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be adjudicated before the proper forum and such an elaborate adjudication cannot be done by the High Court in a writ proceedings. 23. Roving Enquiry cannot be conducted in a writ proceedings. Verification and scrutinization of original records and evidences are imminent. In the absence of any such scrutinization, inspection or enquiry, the liabilities of the parties cannot be determined and therefore, the High Court has to pave way for such adjudication between the parties in order to claim refund or otherwise with reference to Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. 24. Presuming that the relief as such sought for in the present writ petitions is granted, merely based on the Detention certificate, in the absence of factual adjudication, undoubtedly, there is a possibility of commissions or omissions, which may lead to miscarriage of Justice. Therefore, the High Court need not go into such disputed facts merely based on the affidavits filed by the respective parties to the writ petition. Mere affidavit would not be sufficient to form an opinion regarding the disputed facts, which all are to be made with reference to the documents and e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the High Court in certain writ petitions, issue orders against the Private parties only in certain circumstances, where public interest and public duties are involved. 28. All the writ petitions are maintainable. High Courts will not dismiss any writ petition as not maintainable. However, the entertainability of a writ petition with reference to the facts and the principles of law is to be considered for granting the relief. The extraordinary powers conferred under Article 226 may be used by the High Court in order to mitigate the injustice, if any occurred to the citizen of this great Nation. However, the entertainability with reference to certain facts are to be considered for the purpose of granting the relief. Therefore, the maintainability may not be the point, but the entertainability is the question, which is to be considered with reference to the mixed question of fact of law. In this regard, a person approaching the High Court, should establish that he has a right to claim relief. In the absence of establishing a right, no relief can be granted in a writ proceedings. As held in aforementioned paragraphs, the Detention certificate issued by the Customs authorities i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter, then the Service Provider has to necessarily approach the Civil Court of law for adjudication of disputes and recover the dues from the importer or exporter. When that is the scope for collection of dues by the Service Provider from the importer or exporter, the same procedure is to be followed for the purpose of release of goods or refund of deposits collected by the Service Provider. 18. Under these circumstances, this Court formed an opinion that the Detention certificate is nothing but affirmation of the statutory provisions contemplated, more specifically, with reference to Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. Thus, such a certificate undoubtedly provides a right to the holder of the certificate to claim the relief of release of imported goods by the Service Provider or refund as the case may be. However, there is no consideration in any of these judgments submitted by the learned counsel for the petitioner that in the event of existence of a dispute between the Service Provider and the importer or exporter and the status of certificate of detention. Pertinently, those areas are not considered in the judgments relied on by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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