9911796707
TMI Blog2021 (7) TMI 419X X X X Extracts X X X X X X X X Extracts X X X X ..... l not levy any charges for the said confiscated goods. If at all any deposits are collected in this regard, the said deposits are to be refunded. In the present case, even the goods are not released and the Service Provider is claiming charges, which is in violation of the Detention certificate issued by the Customs authorities. Thus, the petitioner is constrained to move the writ petition - This Court is of the considered opinion that a thin distinction is to be drawn in between the Detention certificate as well as the release granted by various Courts with reference to the Detention certificate issued by the Customs Department. The in-between agreements, contracts, and disputes are relevant for the purpose of granting the relief and such disputes between the Service Provider and an importer or exporter, cannot be adjudicated in a writ proceedings under Article 226 of the Constitution of India. 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 pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 in the present writ petition is for a direction to direct the respondents to cause release of the goods imported without payment of demurrage and container detention charges in terms of Regulation 6(1) (l) of the Handling of Cargo in Customs Areas Regulations. In support of the said contentions, the learned counsel for the petitioner relied on the judgment of the Bombay High Court recently delivered on 8th March 2021 in W.P.No.3676 of 2020 and the relevant paragraphs ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng 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 charges thereafter would be illegal and thus unlawful. 88. We may further clarify that it is nobody's case that the 2018 Regulations have not been validly made. It has therefore the full force and effect of a statute. A conjoint reading of Regulations 10(1)(l) and 10(1)(m) makes it abundantly clear that Priya Soparkar 41 wp 3676-20 the 2018 Regulations are fully binding on the shipping line and it is not open to the latter relying on a contractual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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 learned counsel for the petitioner relying on the said judgment, solicited the attention of this Court with reference to Section 126 of the Customs Act, which contemplates 'the officer adjudging confiscation shall take and hold possession of the confiscated goods'. In view of the said provision under the Act, Regulations are framed and under Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009, n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 counter filed by the respondents 1 and 2 / Customs authorities and more specifically, she relied on Paragraphs 2.4, 2.5 and 4, which all are extracted hereunder: 2.4 It is further submitted that after ascertaining from the ICES system that the differential duty, fine and penalty had been paid, the NOC was issued for release of the impugned goods to the petitioners and copy addressed to the AC (CFS) on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 seized and detained pending an enquiry and adjudication and the cases where the importers have indulged in misdeclaration, misdescription, undervaluation or concealment and fine, penalty, personal penalty and/or warning is imposed by the customs authorities. Importers who are innocent cannot be equated with the importers who violate the law and be given the same treat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 adjudication proceedings, provisional release order is issued and a certificate is issued by the custom authorities, the goods would be released subject to furnishing of bond and/or security as may be prescribed that in case any fine, penalty, personal penalty and/or warning is imposed by the customs authorities, the Im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... port 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 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 . It is clear that the Customs Cargo Service P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate 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 Certificate is an eligibility certificate, confirming the eligibility of an importer or exporter to claim refund under Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. However, mere eligibility would not confer any right to claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rds 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 evidences and in consonance with the terms and conditions of the agreement or contract. 25. This being the principles to be followed, the Detention certificate issued by the Customs authorities is to be construed as an eligibility ce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is to be construed as an eligibility certificate for claiming refund. However, the said certificate would not confer right to get back the refund, in the absence of resolving the disputes between the Service Prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 petitioners. In the event of directly acting upon the Detention certificate, which is nothing but confirmation of the provisions of the Act and the regulations, the Service Provider may suffer any ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
