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TMI Blog2021 (7) TMI 990X X X X Extracts X X X X X X X X Extracts X X X X ..... ke possession. However, the goods are still under the custody of the Service Provider. The goods are not taken away from the premises of the Service Provider. Therefore, the grievances of the service provider are also to be looked into and considered, while granting the relief of release of the imported goods or refund of the deposits, if any made - this Court is of the considered opinion that in between disputes, more specifically, with the Service Provider and the 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. The contractual relationship between the service providers, who is a private person and the petitioner cannot be resolved under writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itary certificate issued by the Ministry of Agriculture, Agency for Agriculture Quarantine, Republic of Indonesia No.0945982 dated 28.07.2017. 3. The petitioner states that on arrival of goods at Chennai Port, he filed Bill of Entry dated 02.08.2017 for clearance of the goods. The Bill of Entry was assessed to duty and out of charge was accorded in respect of the said Bill of Entry under CTH 21069030, as unflavoured supari . However, for reasons unknown to to the petitioner and best known to the respondents, despite according out of charge, by the proper Officer of Customs, the goods have not been permitted to be cleared for home consumption. The petitioner had paid applicable duties and the Officers of the Directorate of Revenue Intelligence, attached to the 2nd respondent on the basis of information and intelligence, that the goods imported by the petitioner, were misclassified, conducted examination of goods imported by the petitioners and subsequently the goods were detained. The imported goods by the petitioner are perishable in nature and also for human consumption, besides requiring storage in a refrigerated container considering the perishable nature of the goods, despi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ounsel 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 the entries are found to be correct though as per the proviso, the authorised carrier may demand container detention charges after sixty days. Regulation 10(1)(m) makes it incumbent upon an authorised carrier to abide by all the provisions of the Customs Act and the rules, regulations, notifications and orders issued thereunder. 81. The 2018 Regulations is a piece of subordinate legislation having the force of law. Since it has been framed by the Board in exercise of the powers conferred by section 157 read with sections 30, 30 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 between provisions of a subordinate legislation and provisions of a private contract, the terms of the contract will have to yield to the provisions of the subordinate legislation to the extent of repungnancy. 89. There is one more aspect which we would like to deal with. This court while setting aside the first order-inoriginal vide the order dated 27th October, 2020 had directed maintenance of status-quo in respect of the goods of the petitioner till passing of the fresh order. It is a settled proposition that an ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... '. 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. 11. 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 forthwith release the imported cargo without insisting upon the payment of demurrage charges and detention charges till the date of release, as it has already been waived by the department by their Waiver certificates dated 10.01.2018. The respondents 1 and 2 are directed to initiate appropriate action under relevant regulation against the respondents 3 and 4 on account of their disobedience. No costs. 12. In the case of M/s.P.Perichi Gounder Memorial Charitable Trust Vs. The Commis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 16. 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 disputes regarding collection of service charges or otherwise between the Customs Cargo service Providers and the importer or exporter. Thus, High Court cannot directly issue a direction to release the goods or refund the deposit before adjudication of any of these disputes between the Service Provider and importer or exporter and such an adjudication cannot be exercised in writ proceedings. While granting the relief, the grievances of both the parties are to be considered by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce to the disputes or grievances exists between the Service Provider, who is a private party and the exporter or importer. 20. The learned Senior Panel 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 12.09.2017 passed in W.P.No.22114 of 2017. The learned Senior Panel 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 Certificate was issued. Therefore, they have implemented the order and the recovery of refund is to be made by the 4th respondent, who is the Service Provider. The 4th respondent is APL India Private Limited and private person. Thus, the disputes between the parties are to be adjudicated and the Customs Authorities cannot involve in any of such disputes between the parties based on the terms and conditions of the contract. Therefore, the relief as such sought for are not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 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 present cases, the third respondent is the Cargo Service Provider and the petitioners have deposited some amount and seeks refund. The Customs authorities issued a certificate merely stating 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. 15. Thus, this Court has to examine the nature of the certificate issued by the Customs authorities und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o 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, transportation charges etc., all are to be decided based on the terms and conditions of the contract entered into between the Customs Cargo Service Provider and the importer or exporter. In some circumstances, the importer or exporter pay such charges voluntarily on various reasons and all these facts and circumstances deserves an adjudication and the issues disputed are to be resolved and then only the question of refund would arise. 21. For example, a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cation 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 respondent is obligated to execute the Detention certificate. Such an execution cannot be done without adjudication of the disputed facts and circumstances. This apart, as observed earlier, mere certificate would not confer any right to claim refund and such a certificate would enable the holder to claim refund under Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 and all further adjudications or disputes with the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he disputes, if any exists between the Service Provider and the importer or exporter. 22. 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, based on the Detention Certificate issued by the Customs Authorities, the petitioner has to adjudicate the same before the Competent Forum or claiming recovery of refund. 23. This being the nature of the Detention Certificate issued under the Regulations, this Court is of an opinion that mere issuance of Detention Certificate would not confer any right to get refund directly from service provider, who is a private party. The contr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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