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TMI Blog2021 (7) TMI 420X X X X Extracts X X X X X X X X Extracts X X X X ..... The petitioner states that for the purpose of the said imports, the petitioner is favoured with an Import Export Code No.0416935486 dated 20.12.2016 issued by Office of the Zonal Director General of Foreign Trade. The petitioner states that during the course of her business, imported a quantity of 152.942 Metric Tons of goods declared as MS Defective Temper Mixed Sheets above 4.5 mm Thickness from Nu Steels Private Limited., Singapore vide Invoice No.16-1521 dated 21.12.2017 for an amount of USD 68823.90. The said consignment was shipped vide 6 x 20' Containers and consigned vide Bill of Lading No.HDMU SGIH0516364 dated 18.12.2016 to Chennai port. The petitioner filed Bill of Entry No.8714607 dated 28.02.2017, for clearance of the said goods. 3. The petitioner states that on arrival of the goods at Chennai Port, the petitioner filed Bill of Entry No.8714607 dated 28.02.2017 for clearance of the goods. On filing of the said Bill of Entry, the same was taken up for investigation by the office of the 2nd respondent viz., the SIIB, attached to the office of the 1st respondent. The said Investigation Unit, detained the goods imported by the petitioners on 13.03.2017 vide report of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r states that they approached the 3rd respondent. However, the 3rd respondent refused to honour the said Detention certificate issued by the 2nd respondent for waiver of demurrage and container detention charges and have informed the petitioners that unless and until, the petitioners discharge their liability towards the said charges, the goods imported by the petitioners would not be released and they are not concerned with the Detention Certificate dated 09.05.2017, issued by the 2nd respondent. However, the 3rd respondent refused to honour the said certificate and also refrained from issuing any communication to such effect to the petitioners. 5. Aggrieved by the non-acceptance of the Detention certificate dated 09.05.2017, the petitioner caused a communication to the office of the 2nd respondent dated 15.01.2018 through their counsel with a copy marked to the 1st respondent and the Chief Commissioner of Customs, Chennai, informing them that the 3rd respondent have not honored the Detention certificate and sought for compliance by the Steamer Agent / Liner in a letter and spirit of the Handling of Cargo in Customs Areas Regulations, 2009 and that the certificates issued by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are bound to initiate action against the Service Provider and in the present case, no action has been taken by the Authorities. 10. The petitioner referred Regulation 6 (1) (l) also, under the said Section, 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]; 11. 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 are extracted hereunder: "80. We have already noted that the 2018 Regulations have come into force on and from 01.08.2019. Regulation 10(l) makes it abundantly clear that an authorised carrier shall not demand any container detention charges for the containers laden with goods detained by the customs for the purpose of verifying the entries made under section 46 or section 50 of the Customs Act which deal with entry of goods on importation and entry of goods for exportation respectively if t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 provision to contend that it will not comply with a direction or certificate issued under Regulation 10(1)(l). The private contract between the petitioner and the shipping line must yield to the rigours imposed by the subordinate legislation vis-a-vis the subject matter of conflict i.e, levy of detention charges for the period under consideration. That apart, Supreme Court has held that it is an implied condition of every contract that the parties will act in conformity with the law. In case of repugnancy betw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms 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." 12. 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, no charges can be recovered. In the event of confiscation of goods by the Customs authorities as the authorities are in possession of the imported goods. 13. The learned counsel further relied on the judgment of the Madras High Court in the case of Giridhari Homes Private Limited, Vs. Principal Commissioner of Customs, Chennai-III, reported in 2018 (361) E.L.T., 463 (Mad) and relevant paragraph 6 is extracted hereunder: "6. In the light of the above, the writ petition is disposed of with a direction to the respondents 3 and 4 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the goods belong to the Customs Department are confiscated and the Service Provider is not entitled to collect any charges, then they are bound to release the goods and refund the deposit, if any collected. 16. 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. 17. This Court is of the considered opinion that a thin distinction is to be drawn in between the Detention certificate as well as the relief granted by various Courts with reference to the Detention certificate issued by the Customs Department. The in-between possible or existing 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. 18. Before resolving the disputes between the Customs Cargo Service Provider and the exporter or importer, the Statutory Detention Certificate issued by the Customs Authorities cannot be acted upon. There may be some dispu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he importer or exporter has not been considered in any of these judgments relied upon by the petitioners. Therefore, this Court is of the opinion that the Detention certificate issued under the provisions of the Customs Act is reiteration of the legal position, which is binding on the Service Provider. However, such Detention certificate cannot be the sole document for the purpose of grant of relief of refund or release of goods without further adjudication with reference to the disputes or grievances exists between the Service Provider, who is a private party and the exporter or importer. 22. The learned Standing counsel appearing on behalf of the respondents disputed the contentions raised on behalf of the writ petitioner by stating that the Authorities considered the classification of the impugned goods. However, the Customs Authorities issued the Detention Certificate based on the orders of this Court dated 18.01.2018 passed in W.P.Nos.765 & 1114 of 2018. The learned Standing counsel made a submission that based on the regulations, the Customs Authorities issued the Detention Certificate and the notice pursuant to the orders of the High Court in writ petition, Detention Certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Provider shall not charge any rent or demurrage. 13. Regulation 6, Sub-Clause (3) enumerates that "the Customs Cargo Service Provider shall publish and display at prominent places including website or webpage of the Customs Cargo Service Provider the schedule of charges for the various services provided by him in relation to the imported goods or export goods in the customs area." Perusal of the scheme of Regulation would reveal that there are certain contractual obligation between the Customs Cargo Service Provider as well as the importer or exporter. Such terms and conditions of the contract cannot be enforced by filing a writ petition or based on the Detention certificate issued by the competent authorities in the absence of any factual adjudication with reference to the disputes. 14. The question arises, how to decide whether any rent or demurrage on goods seized is charged, collected or recovered by the Customs Cargo Service Provider. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g 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 refund in the absence of adjudication of disputes or compliance of the contractual obligations between the parties. In other words, the Detention certificate perse would not confer any right on the petitioners to seek refund directly from the Customs Cargo Service Provider. The terms and conditions, contractual obligations between the petitioners and the Customs Cargo Service Provider are unconnected with the Customs authorities of the Department of Customs. Thus, an adjudication becomes mandatory for the purpose of refund. In the event of consensus or no dispute, the parties themselves may take a decision for refund. However, the Detention certificate cannot provide cause for seeking a relief by filing the writ petitions under Article 226 of the Constitution of India. 20. The amount of deposit, the amount of refund, the period for which, the importer or exporter is entitled for refund and the other claims of the Customs Cargo Service Provider regarding freight charges, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 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 certificate for the purpose of claiming the benefit conferred under Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 and the certificate would not confer any right on the holder of the certificate to claim refund without adjudication of the disputed facts and circumstances with reference to the terms and conditions of the agreement or contract. Such an adjudication cannot be done in a writ proceedings under Article 226 of the Constitution of India. Therefore, for the purpose of adjudication, the parties are bound to approach the competent forum and after resolving the disputes, the refund or otherwise is to be granted by following the procedures as contemplated. 26. In the present cases, the petitioners sought for a direction to the second respondent, to direct the third respondent. Such a direction is uncalled for, in view of the fact that the second respondent has already issued Detention certificate as per the provisions. It is contended that the second responde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficate 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 Provider and the importer or exporter. Thus, the procedures and resolving the disputes in between the eligibility certificate and refund can never be waived by the High Court nor a direction can be issued to direct the Service Provider to refund the amount without resolving the disputes, if any exists between the Service Provider and the importer or exporter." 24. The undertaking clause in Regulation 5 (5) is to ensure that the service providers implement the provisions of the Act and the Rules as well as the consequent orders issued by the Authorities. However, this Court has held in the aforementioned paragraphs that Detention Certificate is to be construed as Eligibility Certificate for the purpose of claiming refund and the refund is to be granted after resolving the disputes, if any exist between the service providers and importers or exporters. The contractual relationship between the service providers, who is a private person and the petitioner cannot be resolved under writ jurisdiction by the High Court. Thus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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