9911796707
TMI Blog2021 (8) TMI 617X X X X Extracts X X X X X X X X Extracts X X X X ..... Cargo in Customs Areas Regulations, 2009, issued thereunder). HELD THAT:- The TAMP, under Section 48, merely fixes and approves the scales of rates for services to be performed by the Board or other persons. Even in respect of any CFS which may be located within the area of a Major Port and may, therefore, conceivably be amenable to Section 48 of the Major Port Trusts Act, all that the Section regulates are the scales of rates for the services to be performed by the CFSs or ICDs. There is no provision, in the Major Port Trusts Act, which can regulate the levying, charging or recovery, by the CFSs or ICDs, from their customers, of charges payable against storage of goods which would include penal charges in the event of the goods remaining in the premises of the CFSs or the ICDs beyond the free period. There is a fundamental difference, in basic fiscal jurisprudence, between fixation of a tariff and levy and collection of charges in terms thereof. The TAMP has no concern with the recovery and collection of penal charges, whether in the name of ground rent, demurrage or detention charges, by ICDs, CFSs or shipping lines - A conjoint reading of para 3(iii) and 10 of the MOS C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitions. The relationship between shipping lines and their customers was expressly contractual in nature, and the prerogative to decide on the charges leviable from the customers for continuing to retain the containers beyond the free period vested in the shipping lines, is governed by negotiated contract ad idem. The State has no direct causal connection with these charges. The powers exerciseable under the Disaster Management Act could not, therefore, be so exercised as to restrain collection thereof, by the shipping lines. The aspect of the charges recovered, by ICDs of CFSs, from importers or exporters was, clearly, not even remotely in the contemplation of the authorities while issuing the aforesaid Circular dated 8th June, 2009. The Circular has been issued for a very specific purpose and to clarify certain specific aspects relating to the functioning of ICDs and CFSs and the distinction between the two and cannot, therefore, be used as a ground to seek waiver, or exception, from payment of penal charges to ICDs, CFSs or shipping lines, beyond the free periods . Nor can this Circular be used to support the contention that all instructions issued by the CBIC are, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pta, Advocates for R-6 to R-12, R-14, R-15 and R-18. Mr.Manu Sishodia and Mahinder Bairwa, Advs for R-19 Mr.K.K. Tyagi, Adv for CWC. Ms. Sonu Bhatnagar, Ms.Mallika Joshi, Ms.Venus Mehrotra, Mr. Vaibhav Joshi and Ms.Kanak Grover, Advs. for R-1 5. Mr. Chetan Sharma, ASG with Ms. Anjana Gosain, Ms. Shalini Nair, Ms. Aditti Amitabh, Advocates for R-2 to R-4. Mr.Vikram S. Nankani, Sr. Adv. with Mr.Naresh Thacker, Mr.Jitendra Motwani, Ms. Rinkey Jassuja and Mr. Kumar Visalaksh, Mr. Udit Jain and Mr. Archit Gupta Adv. for R-6. Mr.Ramneek Mishra, Advocates for R1 to R5. Mr.C.U. Singh, Sr.Adv and Mr.Darpan Wadhwa, Sr.Adv with Mr.Prathamesh Kamat, Mr. Malhar Zayaria, Mr.Ankur Kashyap, Mr. Shiv Iyer, Ms. Ankita Sen and Mr. Osama Butt, Advs. for respondent No. 8 Mr. Uma Kant Mishra, Advocate for applicants. W.P.(C) 3029/2020 and CM 10998/2020, 11044/2020, 11045/2020, 11046/2020, 11047/2020, 12389/2020, 18969/2020 and 18970/2020 W.P.(C) 10142/2020 W.P.(C) 3171/2020 and CM APPL. 11027/2020 W.P.(C) 3195/2020 and CM APPL. 11336/2020 W.P.(C) 3561/2020 W.P.(C) 4184/2020 C.M. Nos. 23827/2020, 23967/2020 23968/2020, 16043/2021 16044/2021 W.P.(C) 4185/2020 W.P.(C) 4186/2020 W.P.(C) 4349/2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers are not returned to them within a fixed number of free days . Ordinarily, therefore, after containers are unloaded from the vessel in which they arrive, the containers are required to be returned to the shipping lines within a contractually stipulated number of days. If they are so returned, no additional charge is levied on the importer. If they are not returned to the shipping lines within such free days , they suffer detention charges, levied by the shipping lines in accordance with the contract executed between the shipping lines and the importers. Similarly, ICDs and CFSs also permit the imported goods to be stored within their premises for a number of free days , on payment of normal charges. If the goods remain in their premises beyond such free days , they suffer penal charges, chiefly ground rent at much higher rates than is ordinarily charged. 2. The Central Board of Excise and Customs (CBEC; now rechristened CBIC ) issued, on 22nd December, 1995, a Circular, simplifying the procedure for setting up ICDs and CFSs. We may reproduce paras 2 and 3 of the said Circular: 2. The Container Freight Station (CFS) is not a Customs Station but it is to be declared a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ows in para 2 of the Circular, that the CFS functions like a full-fledged Customs Station . This may, therefore, be analogised, at best, to a deeming fiction created by the statute. 3. Consequent on the COVID-2019 pandemic, there was a considerable disruption in the movement of goods. To an extent, this also affected the movement of cargo. As a result, the petitioners in these petitions [barring WP (C) 3649/2021] contend that, for no fault of theirs, they were unable to remove the imported goods from the premises of the ICDs/CFSs, or return the containers to the shipping lines, within the permissible number of free days . The petitioners submission is that, by virtue of instructions, contained in Office Orders and Circulars issued by the Ministry of Shipping (MOS), Directorate General of Shipping (DGS) and Central Board of Indirect Taxes and Customs (CBIC), they were entitled to waiver of penal detention charges and ground rent, for the said period. Whether they were, or not, is required to be determined by us in these petitions. 4. WP (C) 3649/2021 is the odd man out in the group of petitions, as it challenges the Office Order and Circulars on which the petitioners, in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pread of the COVID-19 pandemic in the country. In compliance with the said directions, and in the exercise of the powers conferred on him by Section 10(2)(l) of the Disaster Management Act 4 , the Order, dated 24th March, 2020 was issued by the Home Secretary, in his capacity as Chairperson, National Executive Committee, and guidelines were annexed for strict implementation by Ministries and Departments of the Government of India, Governments of States and Union Territories and Disaster Management Authorities in the States and Union Territories. The Order was to remain in force for 21 days, w.e.f. 25th March, 2020. As this order effectively imposed a condition of lockdown in the country, it is referred to, hereinafter, as the first lockdown order . 9. The Annexure to the aforesaid MHA Order dated 24th March, 2020 enumerated restrictions on the functioning of various establishments and services, many of which were to remain completely suspended or closed. Clauses 5 and 6 of the Annexure read thus: 5. Industrial Establishments will remain closed. Exceptions : a. Manufacturing units of essential commodities. b. Production units, which require continuous ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e their relevant charges on this account . Paras 4 to 6 of the said communication read thus: 4. You are aware that JNPT 5 F. No. JNPT/DyCh/2020/COVID 19 dated 26.03.2020 has made it clear that the Govt. of Maharashtra orders of exclusion from Lockdown also specify that any service connected with loading, unloading, movement or storage of goods at seaport is also an essential service. A copy of the letter is attached. JNPT has stated that all agencies/CFSs shall put in maximum efforts to carry out smooth handling of all related activities. 5. You would also note that JNCH 6 is continuously making available adequate number of Customs Officials keeping in view the instructions in this behalf for providing the Customs Clearance of import and export goods. Further, Customs is continuously maintaining its roster for the gates, scanning, parking plaza etc. to provide required facilitation. 6. In the light of the above it is imperative for CFSs to follow the lawful position and ensure the discharge of the essential services attributable to CFS functions, without any delay. It is hoped that CFSs would also sensitively consider the request for waiver from their clients. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dated 30th March, 2020, issued by the Commissioner of Customs, Chennai-IV, to all importers, exporters, Customs Brokers, Custodians of CFSs, Port Terminal Operators, Shipping lines/Shipping Agents, PGAs, members of the Trade and all persons concerned , which notes the fact that, due to the lockdown announced by the Government, many import containers could not be cleared from the port, leading to congestion. In order to decongest ports, the Facility Circular communicated the decision of the Commissioner to allow movement of the containers en bloc to the CFSs and ICDs mentioned in Annexure A thereto. As part of trade facilitation , CFSs and ICDs were directed not to charge more than the tariffs specified in the Facility Circular, which envisaged free storage of containers at CFSs and ICDs during the period of lockdown and 5 working days thereafter, and levy of transportation charges up to a maximum of ₹ 6000/ per 20 containers and ₹ 8,000/ per 40 containers. Interestingly, we may note even at this juncture, the stand of the respondents before us including the MOS and the CBIC that the Customs authorities did not possess the jurisdiction to direct CFSs and ICDs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... anchorage/berth hire charges and any other performance-related penalties that may be levied on port related activities including minimum performance guarantee, wherever applicable. Major Port is defined, in clause (m) of Section 2 of the Major Port Trusts Act, 1963 ( Major Port Trusts Act , in short) as having the same meaning as in the Indian Ports Act, 1908 ( the Indian Ports Act in short). The Indian Ports Act defines major port , in Section 3(8) as meaning any port which the Central Government may by notification in the Official Gazette declare, or may under any law for the time being in force have declared, to be a major port . As on date, it is not in dispute that the only major ports in India are Chennai Port, Cochin Port, Deen Dayal Port Trust, Jawaharlal Nehru Port, Kandla Port, Kolkata Port, Mormugao Port, Mumbai Port, New Mangalore Port, Visakhapatnam Port, V. O. Chidambaranar Port and Kamrajar Port. 14. On the same day, i.e. 31st March, 2020, the DGS issued Order No. 08 of 2020 in similar terms. Paras 5, 6 and 7 of the Order read thus: DGS Order No. 08 of 2020 Sub: Advisory on non-charging of any demurrage, ground rent beyond the allowed free ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 9th April, 2020, the following communication, to CFSs at the Jawahar Lal Nehru Port and to the CFSAI: Sub: Ministry of Shipping Order No. PD-14300/4/2020PD VII dated 31.03.2020 reg. Ministry of Shipping Order cited in subject above refers. It is self-explanatory. In view of the situation referred therein, its para 4 makes specific directions related to not levying penalties, demurrage, charges, fee, rentals for any delay inter-alia evacuations of cargo caused by the reasons attributable to lockdown measures from 22nd March to 14 April 2020. It also directs exemption or remission in certain regards. These are discussed in para 9 thereof by the Ministry of Shipping Order under section 111 of the Major Port Trust Act, 1963 8 . 2. This office is receiving complaints that CFSs are insisting for full payments of ground rent and other charges for the delay in clearance of containers which could not be cleared due to reasons attributable to nation-wide lockdown. 3. In this regard your attention is drawn to this office letter No. S/5-Gen/45/2019-20/CCSP Cell/JNCH dated 27.03.2020 inter-alia advising that CFSs sensitively consider the request for waiver from their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sub: Issues at Major Ports relating to: 1) Exemptions/Remission of charges 2) Force Majeure ***** 2. Ministry of Home Affairs, Government of India issued Order No. 40-3/2020-DM-I(A) dated 24.03.2020 and subsequent order dated 15/4/2020 along with its amendments to impose lockdown from 22nd March to 3rd May, 2020 (hereafter Lockdown Period ) to contain COVID-19 pandemic in the country. The lock-down measures and associated disruptions in logistic chains have impacted the Indian ports and port users. There is an impact in the form of drop in imports and exports volumes, delays in evacuation of cargo, cash flow issues etc. resulting in inability of port users, concessionaires and other stakeholders to fulfil their obligations to port authorities and banks/lenders. In the view of this extraordinary situation and after considering the representations received from various stakeholders, all Major Ports are directed that: 3. Remission of charges to Port Users (i) Storage Charges: Ports shall allow free storage time to all port users for the Lock-down period. (ii) Lease rentals, license fees, related charges: Ports shall allow deferment of Ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ys inclusive), over and above free time arrangements that is currently agreed and availed as part of any negotiated contractual terms. 7. It is now decided, that for the second lockdown period, the shipping companies or carriers (and their agents by whatever name called) shall not charge, levy or recover any penal charges, demurrage, ground rent, storage charges in the port, detention charges, dwell time charges, additional anchorage charges, penal berth higher charges, vessel demurrage or any performance related penalties on cargo owners/consignees of non-containerized cargo (i.e. bulk, brake bulk and liquid cargo) whether LCL or not for the period from 15th April, 2020 to 03rd May, 2020 (both days inclusive), due to delay in berthing, loading/unloading operations or evacuation/arrival of cargo. 8. The above exemption/remissions shall be over and above free time arrangement that is currently agreed and availed as part of any negotiated contractual terms. During this period the shipping companies or carriers (and their agents) are also advised not to impose any new or additional charge. This decision is a onetime measure to factor in the present situation arising out of C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion by port users including ICDs, CFSs, Shipping Lines etc. 3. Accordingly, the aforementioned orders issued by the Ministry of Shipping and Director General of Shipping are brought to your attention for strict compliance by all the ICDs/CFSs of your zone. 21. Circular dated 23rd April, 2020, issued by the Commissioner of Customs, JNCH, Nhava Sheva to all CFSs at Jawaharlal Nehru Port, as well as the ICDs located at Mulund and Tarapur, which refers to the CBIC letter dated 23rd April, 2020 supra and forwards, for strict compliance , the Order issued by the MOS and DGS, has also been placed on record by the petitioners. A similar Circular, issued by the Principal Commissioner of Customs, Mundra, on 24th April, 2020, has also been placed on record. 22. The above communications provoked a response, dated 23rd April, 2020, addressed by the CFSAI to the Chairman, JNPT. The CFSAI reiterated the fact that, even during the lockdown period, they had been functioning uninterruptedly, albeit with limited resources. As many as 1,04,000 containers had, it was pointed out, been evacuated from Terminals during the lockdown period, which itself stood testimony to the manner in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is minimised . 24. On 8th May, 2020, the Commissioner of Customs, JNCH, again wrote to the CFSs, in the wake of grievance emails from importers regarding non-compliance, by CFSs, of the MOS Order dated 21st April, 2020 and the orders issued by the DGS, regarding non-levying and non-charging of penalties, demurrage charges, fee and rentals for the delay in evacuations of cargo caused by reasons attributable to lockdown measures implemented by the Government effective from 22nd March, 2020. Para 2 of the said letter read as under: 2. Guidance has been given to CFS under communications dated 27.03.2020, 09.04.2020, 23.04.2020, 24.04.2020, 27/28.04.2020 by this Office, conveying, inter alia, that the Lockdown Orders and containment of Covid-19 Directives under specific Acts issued by the GOI and the Govt. of Maharashtra result in goods/containers being detained by force of circumstances created by Law. As the logistics chains of businesses adjust to these measures, the said type of confinement eases. CFS was requested to view the situation in perspective and as akin to when goods detained per HCCAR, 2009. It was informed that CFS is part of the layout and business plan of the i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and shipping lines not to charge any penal charges from the petitioners, by whatever name called, for the delay in clearing the petitioners containers from the ICDs and CFSs and returning the containers to the shipping lines, beyond the free days provided by the CFSs, ICDs and shipping lines. As the recital above discloses, some relaxations were, suo motu, granted, especially by the CFSs, but these, according to the petitioners, are insufficient. Like Oliver Twist, the petitioners want more. The decisions in Small Scale Industrial Manufacturers Association v. U.O.I. and Indian School v. State of Rajasthan 28. Before proceeding to analyse the merits of the petitioners claims, we intend to examine the recent decisions of the Supreme Court in Small Scale Industrial Manufacturers Association v. U.O.I. 2021 SCC OnLine SC 246 and Indian School v. State of Rajasthan 2021 SCC OnLine SC 359, the former by a Bench of three Hon ble Judges and the latter by a bench of two Hon ble Judges. These decisions opine, in some detail, on the provisions of the Disaster Management Act, in the wake of the COVID-19 pandemic. They are of considerable significance in appreciating the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of being at the discretion of the Lenders; iv) extension of moratorium beyond 31.08.2020; v) whatever the relief packages are offered by the Central Government and/or the RBI and/or the Lenders are not sufficient looking to the impact due to Covid19 Pandemic and during the lockdown period due to Covid-19 Pandemic; vi) the last date for invocation of the resolution mechanism, namely, 31.12.2020 provided under the 6.8.2020 circular should be extended. 29.3 It becomes necessary, now, to set out, in extenso, paras 121 to 141 of the report in Small Scale Industrial Manufacturers Association, as they set out certain basic principles to be followed in such cases, which the writ court has necessarily to bear in mind: 121. While considering the aforesaid submissions/reliefs sought, the scope of judicial review on the policy decisions in the field of economy and/or economic policy decisions and/or the policy decisions having financial implications which affects the economy of the country are required to be considered. 122. In catena of decisions and time and again this Court has considered the limited scope of judicial review in economic policy matters. From ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide. 126. In the case of BALCO Employees Union (Regd.) v U.O.I., (2002) 2 SCC 333 this Court has observed that wisdom and advisability of economic policies are ordinarily not amenable to judicial review unless it can be demonstrated that the policy is contrary to any statutory provision or the Constitution. In other words, it is not for the courts to consider relative merits of different economic policies and consider whether a wiser or better one can be evolved. 127. It is further observed that in the case of a policy decision on economic matters, the courts should be very circumspect in conducting an enquiry or investigation and must be more reluctant to impugn the judgment of the experts who may have arrived at a conclusion unless the court is satisfied that there is illegality in the decision itself. 128. In the case of Peerless General Finance Investment Co. Ltd v. R.B.I., (1992 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The courts cannot run the Government nor can the administration indulge in abuse or non-use of power and get away with it. The essence of judicial review is a constitutional fundamental. The role of the higher judiciary under the Constitution casts on it a great obligation as the sentinel to defend the values of the Constitution and the rights of Indians. The courts must, therefore, act within their judicial permissible limitations to uphold the rule of law and harness their power in public interest. It is precisely for this reason that it has been consistently held by this Court that in matters of policy the court will not interfere. When there is a valid law requiring the Government to act in a particular manner the court ought not to, without striking down the law, give any direction which is not in accordance with law. In other words, the court itself is not above the law. 131. In Prag Rice Oil Mills v. U.O.I., (1978) 3 SCC 459, this Court observed as under: We do not think that it is the function of the Court to set in judgment over such matters of economic policy as must necessarily be left to the government of the day to decide. Many of them are matters of pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f judicial review of the governmental policy is now well defined. The courts do not and cannot act as an appellate authority examining the correctness, stability and appropriateness of a policy, nor are the courts advisers to the executives on matters of policy which the executives are entitled to formulate. 137. Government has to decide its own priorities and relief to the different sectors. It cannot be disputed that pandemic affected the entire country and barring few of the sectors. However, at the same time, the Government is required to take various measures in different fields/sectors like public health, employment, providing food and shelter to the common people/migrants, transportation of migrants etc. and therefore, as such, the government has announced various financial packages/reliefs. Even the government also suffered due to lockdown, due to unprecedented covid-19 pandemic and also even lost the revenue in the form of GST. Still, the Government seems to have come out with various reliefs/packages. Government has its own financial constraints. Therefore, as such, no writ of mandamus can be issued directing the Government/RBI to announce/declare particular relief p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fficaciousness for implementation of the object and purpose of such policy decision. 141. With the limited scope of judicial review on the policy decisions affecting the economy and/or it might have financial implications on the economy of the country, the reliefs and submissions stated hereinabove are required to be considered. Whether there shall be a waiver of interest during the moratorium period or whether there shall be sector-wise relief packages and/or RBI should have issued directions which are sector specific and addressing such sector specific issues and/or whether the moratorium period should be extended beyond 31.08.2020 or the last date for invocation of the resolution mechanism, namely, 31.12.2020 provided in the 6.8.2020 circular should be extended are all in the realm of the policy decisions. Not only that, if such reliefs are granted, it would seriously affect the banking sectors and it would have far reaching financial implications on the economy of the country. (Italics and underscoring supplied) 29.4 Following the discussion in the afore-extracted passages, the Supreme Court went on to hold (in para 142 of the report) that when a conscious decis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al entities and since the customer profile, organizational structure and spread of each lending institution is widely different from others, each lending institution is best placed to assess the requirements of its customers and therefore, the discretion was left to the lending institutions concerned. Any borrowing arrangement is a commercial contract between the lender and the borrower. RBI and/or the Union of India can provide for broad guidelines while recommending to give the reliefs. 145. Now so far as the submission on behalf of the petitioners that the relief packages which are offered by the UOI/RBI/Bankers/ Lenders are not sufficient and some better and/or more reliefs should be offered is concerned, it is not within the judicial scope of the courts to issue such directions. No mandamus can be issued to grant some more reliefs/packages. As observed hereinabove, the court cannot interfere with the economic policy decisions on the ground that either they are not sufficient or efficacious and/or some more reliefs should have been granted. The Government might have their own priorities and the Government has to spend in various fields and in the present case like hea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I; and (v) that the Central Government/RBI must provide for some further reliefs over and above the relief packages already offered which, as observed hereinabove, can be said to be in the realm of the economic policy decisions and for the reasons stated hereinabove and as observed hereinabove granting of any such reliefs would have a far-reaching financial implication on the economy of the country. It appears, whatever best can be offered has been offered for the different fields and to the common people as well as those persons who are affected due to Covid-19 pandemic. However, the relief/prayer not to charge the penal interest/interest on interest/compound interest during the moratorium period is concerned, it stands on different footing which shall be dealt with herein below. (Emphasis supplied) 29.7 The only prayer of the petitioners before it, which the Supreme Court deemed to possess some merit was, therefore, the prayer for a direction to the authorities not to charge penal interest, interest on interest or compound interest during the moratorium period. All other prayers, including the prayer for waiver of interest during the moratorium period, extension of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of the same, even though he might have repaid substantially bringing down the principal amount of less than ₹ 2 crores as on 29.02.2020, but because of the sanction of the loan amount of more than ₹ 2 crores, he will be ineligible. It also further provides that the outstanding amount should not be exceeded to ₹ 2 crores and for this purpose aggregate of all facilities with the lending institution will be reckoned. Therefore, if a borrower, for example, MSME Category has availed and has outstanding of business loan of ₹ 1.99 crores and also has dues of its credit card of ₹ 1.10 lakhs, thereby making the aggregate to ₹ 2.10 crores, it stands ineligible. Therefore, the aforesaid conditions would be arbitrary and discriminatory. 164. Even otherwise, it is required to be noted that compound interest/interest on interest shall be chargeable on deliberate/willful default by the borrower to pay the installments due and payable. Therefore, it is in the nature of a penal interest. By notification dated 27.03.2020, the Government has provided the deferment of the installments due and payable during the moratorium period. Once the payment of installme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rather, it proceeded on the principle of discrimination and arbitrariness. It is important to notice this distinction. It is not as though the Supreme Court fashioned a benefice (metaphorically speaking) in favour of the petitioners before it, in excess of the beneficial dispensations already extended by the Governmental authorities. The Supreme Court, instead, proceeded on the premise that, while extending such beneficial dispensations, the Government could not act arbitrarily or in a manner which would discriminate between entities similarly situated. This, in turn, would also follow from the hallowed principle that, even in distribution of largesse, the Government cannot act in a manner which is arbitrary or discriminatory in nature. Bharti Airtel Ltd v. U.O.I., (2015) 12 SCC 1, Akhil Bhartiya Upbhokta Congress v. State of M.P., (2011) 5 SCC 29, City Industrial Development v. Platinum Entertainment, (2015) 1 SCC 558. Additionally, the Supreme Court proceeded on the basis of the elementary principle that penal interest could be charged only for wilful default. It was, therefore, according to the Supreme Court, incongruous to, on the one hand, waive the requirement of payment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0.3 Apropos the second challenge, the State Government chose to defend the executive orders issued by it as within the jurisdiction vested in it by the Disaster Management Act. The Supreme Court rejected this defence in the following terms: 105. In the present case, we need not dilate on the factum as to whether the Director, Secondary Education could have issued such a policy document in exercise of executive power under Article 162 of the Constitution, which power exclusively vests in the State Government alone. The fact remains that the direction issued in terms of impugned order dated 28.10.2020, on the face of it, collide with the dispensation specified in the Act of 2016 in the matter of determination of school fees and its binding effect on all concerned for a period of three academic years, without any exception. The fact that in the proceedings before the High Court the State Government had ratified the impugned order, does not take the matter any further. In that, there can be no ex post facto ratification by the State Government in respect of subject, on which, it itself could not issue such direction in law. 106. Even the exposition in Rai Sahib Ram Jawaya Ka ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... between two private individuals in every aspect of life which may have bearing on right to life guaranteed under the Constitution. That would not only open pandora's box, but also push the State Government to entertain demands including to grant subsidy, from different quarters and sections of the society in the name of mitigating measures making it financially impossible and unwieldy for the State and eventually burden the honest tax payers - who also deserve similar indulgence. Selective intervention of the State in response to such demands may also suffer from the vice of discrimination and also likely to impinge upon the rights of private individual(s) - the supplier of goods or service provider, as the case may be. The State cannot exercise executive power under Article 162 of the Constitution to denude the person offering service(s) or goods of his just claim to get fair compensation/cost from the recipient of such service(s) or goods, whence the State has no direct causal relationship therewith. ***** 110. Reverting to the provisions of the Act of 2005, no doubt Section 72 thereof predicates that the provisions of the Act will have overriding effect on other la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or incidental thereto. It extends to the whole of India. The Act is to establish Statutory Committees at different level for carrying out the purposes for which the Act has been enacted. It is essentially for effective management of disasters and for matters connected therewith or incidental thereto. ***** 119. Having regard to the purport of the Act of 2005, it is unfathomable as to how the State Authorities established under the stated Act can arrogate unto themselves power to issue directions to private parties on economic aspects of legitimate subsisting contractual matters or transactions between them inter se. It is not enough to say that the same was issued under the directions of the Chief Minister of the State. For, the Chief Minister is only the Chairperson (Ex officio) of the State Disaster Management Authority established under Section 14 of the Act of 2005. Suffice it to observe that there is no provision in the Act of 2005 which concerns or governs the subject of interdicting the school fee structure fixed under the Act of 2016. 120. Section 72 of the Act of 2005 was pressed into service. However, that cannot be the basis to justify the impugned order d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5 The Supreme Court has also clarified that benefits, under the Disaster Management Act, cannot be extended to one party at the cost of the other, so as to permit Paul to profit at the cost of Peter. One may legitimately, in our view, extend the principle to holding that, while putting, in place, ameliorative measures under the Disaster Management Act or, for that matter, under the Epidemic Diseases Act the Governmental authorities had to be circumspect and have to balance the interests of all stakeholders who would be affected, one way or the other, by such dispensations. It is not permissible, in short, for the Government to play Robin Hood. Nor, for that matter, can the Court do so, at the instance of the petitioners before it, or otherwise. 30.6 Another, and especially significant, takeaway from the decision in Indian School , is the aspect of mitigation . Mr. Amit Sibal, learned Senior Counsel for the petitioners, laid great stress on the concept of mitigation as envisaged by the Disaster Management Act, and sought to contend that the ambit of the expression, especially given the beneficial nature of the legislation, was wide and expansive in character. Para 112 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an School , not only to private contractual matters , but also to economic and financial transactions between private parties inter se, with which the State has no direct causal connection. This, in fact, addresses one of the contentions advanced by the petitioners before us in their written submissions though no serious submissions to that effect were made by Mr. Sibal at the Bar that there were no express written contracts between the CFSs or ICDs and the petitioners. More on that, however, later. Relevant Statutes 31. The statutory enactments, within which the dispute in the present case peregrinates, are, essentially, the Disaster Management Act, the Major Port Trusts Act, the Merchant Shipping Act and the Customs Act (along with the Handling of Cargo in Customs Areas Regulations, 2009, issued thereunder). Various provisions of these statutes have been pressed, into service, by both sides, and, before proceeding further, it would be as well that the air, on that count, is cleared. 32. The Disaster Management Act 32.1 The legal position, regarding many aspects of the Disaster Management Act, stands authoritatively exposited in the decisions in Small S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... easily criticise such decisions. Nor can such decisions be struck down on the ground that other, and better, alternatives are possible. Interference would be justified only if the decision is patently arbitrary, discriminatory or mala fide. These decisions are confined exclusively within the realm of policy, and the scope of judicial review thereof is, by necessity, extremely constricted. We may also note, in this context, the recent decision of the Supreme Court in Reepak Kansal v U.O.I., 2021 SCC OnLine SC 443, which specifically proscribes judicial interference with policy decisions, particularly in economic matters. Nor can the Court, in purported exercise of its power of judicial review of administrative action, run the Government. All that the Court can do is to ensure that the executive decision does not violate the law or transgress upon fundamental rights, save and except to the extent permissible under the Constitution of India. (iii) It would be chimerical to expect that such policy decisions, even if ameliorative in nature, would satisfy everybody. The mere fact that one, or the other, sector or sectors may not be agreeable to, or satisfied with, the policy deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timate subsisting contracts or transactions between two private individuals with which the State has no direct causal relationship, especially when the determination of compensation/cost is the prerogative of the supplier or manufacturer of the goods or provider of services. (x) The Disaster Management Act is not a panacea for all difficulties, much less difficulties which are not directly concerned with disaster management as such. 32.5 Beyond this, for the purposes of the controversy in issue, it is not necessary to discuss, further, the provisions of the Disaster Management Act. 33. The Major Port Trusts Act 33.1 The preamble to the Major Port Trusts Act states that it is an Act to make provision for the constitution of the Port authorities for certain Major ports in India and to vest the administration, control and management of such ports in such authorities and for matters connected therewith . Clearly, therefore, the provisions of the Major Port Trusts Act relate only to Major Ports. 33.2 Port is defined, in Section 2(q) of the Major Port Trusts Act as any Major Port to which this Act applies within such limits as may, from time to time, be defined by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rting, storing or delivering goods brought within the Board's premises; (c) carrying passengers by rail or by other means within the limits of the port or port approaches, subject to such restrictions and conditions as the Central Government may think fit to impose; (d) receiving and delivering, transporting and booking and despatching goods originating in the vessels in the port and intended for carriage by the neighbouring railways, or vice versa, as a railway administration under the Indian Railways Act, 1890 (9 of 1890); (e) piloting, hauling, mooring, remooring, hooking, or measuring of vessels or any other service in respect of vessels; and (f) developing and providing, subject to the previous approval of the Central Government, infrastructure facilities for ports. ***** (3) Notwithstanding anything contained in this section, the Board may, with the previous sanction of the Central Government, authorise any person to perform any of the services mentioned in sub-section (1) on such terms and conditions as may be agreed upon. ***** (4) No person authorised under sub-section (3) shall charge or recover for such service any sum in exces ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntil the expiration of thirty days from the day on which the order was published in the Official Gazette. 50. Consolidated rates for combination of services. The Authority may, from time to time, by notification in the Official Gazette, frame a consolidated scale of rates for any combination of service specified in Section 48 or for any combination of such service or services with any user or permission to use any property belonging to or in the possession or occupation of the Board, as specified in Section 49 or the fees to be charged for pilotage, hauling, mooring, remooring, hooking, measuring and other services rendered to vessels as specified in Section 49-A or the port dues to be fixed on vessels entering the port and for the duration of such dues as specified in Section 49-B. 50-A. Port-due on vessels in ballast. A vessel entering any port in ballast and not carrying passengers shall be charged with a port-due at a rate to be determined by the Authority and not exceeding three-fourths of the rate with which she would otherwise be chargeable. 54. Power of Central Government to require modification or cancellation of rates. (1) When ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty conferred on or delegated to, him, to such other Officer or authority as he may specify. The remaining sections in Part I, II and III of the Merchant Shipping Act are of no particular significance to the dispute at hand. Part IV was later omitted. Part V deals with Registration of Indian ships , Part VI with Certificates of Officers such as Masters, Mates, Engineers and Shippers, etc. , Part VI-A with Obligations of certain certificate holders to serve Government or in Indian ships, Part VII with Seaman and apprentices , Part VIII with Passenger ships , Part IX with Safety , Part IXA with Nuclear Ships , Part IXB with Security and Port Facilities , Part X with Collisions, accidents at sea and liability in respect thereof , Part X-A with Limitation of such liability , Part X-B with Civil liability for oil pollution damage , Part XI with Navigation , Part XI-A with Prevention and containment of pollution of the sea by oil , Part XI-B with Control of harmful anti-fouling system of ships . Part XII with Investigations and Inquiries , Part XIII with Wreck and Salvage , Part XIV with Control of Indian ships and ships engaged in coasting trade , Part XV with Sailing V ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemselves having been notified under Section 7. They, therefore, owe their very identity, in a sense, to Sections 7 and 8 of the Customs Act. Clearly, however, the purpose of notification under Section 7, approval under Section 8(a) or specification of limits as customs area under Section 8(b) is for the unloading and loading of goods or for any class of goods , or for keeping of goods, ordinarily, before clearance by the customs authorities. 35.4 Section 45 24 of the Customs Act stipulates that all imported goods, unloaded in a customs area, shall remain in the custody of such person as may be approved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or transshipped. Sub-section (2) of Section 45 sets out the responsibilities of the person having custody of the imported goods in the customs area. The person notified under Section 45 is, therefore, the custodian of the imported goods. CFSs and ICDs are notified custodians, of imported and export goods, under Section 45. 35.5 Section 141 25 subjects all conveyances and goods in a customs area to the control of Customs officers for the purpose of enforcing the provisions of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fore, applies to the handling of import or export goods in ICDs cannot, therefore, in our view, be gainsaid. Regulation 2(b) defines Customs Cargo Services Provider as meaning 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 Customs Act . Learned counsel before us are ad idem that CFSs and ICDs are Customs Cargo Service Providers within the meaning of Regulation 2(b). 35.8.3 Regulation 5 delineates the conditions to be fulfilled by Customs Cargo Service Providers. Of the various sub-regulations under Regulation 5, Sub-Regulation (5), which alone is of relevance, requires the Customs Cargo Services Provider to comply with the provisions and abide by all the provisions of the Act and the rules, regulations, notifications and orders issued thereunder. This requirement is reiterated in clause (q) of Regulation 6(1), which sets out the responsibilities of Customs Cargo Service Providers. Regulation 6(1)(q) requires every Customs Cargo Service Provider to abide by all the provisions of the (Customs) Act and the rules, regulations, notifications ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion granted by the [Deputy Commissioner of Assistant Commissioner of Customs]; (l) 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]; (m) dispose off in the manner specified and within a time limit of ninety days, the imported or export goods lying unclaimed, uncleared or abandoned : Provided that the period of ninety days may be extended by the Commissioner of Customs by such further period as may be allowed, on sufficient cause being shown for delay in the disposal; (n) not make any alteration in the entry or exit points or boundary wall without the permission of the Commissioner of Customs; (o) shall bear the cost of the customs officers posted by the Commissioner of Customs on cost recovery basis and shall make payments at such rates and in the manner specified by the Government of India in the Ministry of Finance unless specifically exempted by an order of the said Ministry; (p) shall observe the Central Government holidays as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vided that no exemption shall be granted in respect of any of the conditions referred to in regulation 5, where the overall safety and security of the premises are likely to be affected thereby.] (2) The Commissioner of Customs may regulate the entry of goods in a customs area for efficient handling of such goods. 35.8.8 Regulation 8 prohibits a Customs Cargo Service Provider from commencing any operation in the customs area for the first time unless the Commissioner is satisfied that the requirements of the Act have been fulfilled and grants permission to commence the operations. Regulation 9 sets out the particulars of the approval to be submitted by the Customs Cargo Service Provider for being permitted custody of imported or export goods and for handling of such goods in a customs area. Where the Commissioner of Customs is satisfied that the applicant fulfils the conditions prescribed in Regulation 5, the Commissioner is empowered, by Regulation 10(1), to approve the applicant as a Customs Cargo Service provider for a period of two years. 35.8.9 Regulations 11, 12 and 13 deal with suspension or revocation of the approval of Customs Cargo Service provider, the proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... penalties that may be levied on port related activities, including minimum performance guarantee wherever applicable. The directions in the Order dated 31 st March, 2020, therefore, pertain to levy of penalties, demurrage, charges, fee and rentals by the Major Port and to exemption or remission, by the Major Port, of the said charges over and above the provided free period. The Order does not deal with any charges levied or collected by CFSs, ICDs or shipping lines. This Circular cannot, therefore, come to the assistance of the petitioners. 37.4 Even otherwise, the Major Port Trusts Act does not empower the Central Government to issue directives to CFSs, ICDs or shipping lines, not to charge any component of the charges otherwise realisable by them from importers or users of their facilities. Power, with the Central Government under Section 111 is restricted to issue of directives to the Board of Trustees of the Port or to TAMP. 37.5 It has been sought to be contended, before us, that Section 111 of the Major Port Trusts Act does empower the Central Government to issue directives, to waive penal charges, to CFSs/ICDs located within the Major ports. We doubt the correctness ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... avit, confirmed that no agreement or arrangement, under Section 42(3-A), has been executed or entered into, between the Board and the CFSs, and Mr. Sibal, for the petitioners, does not dispute this position. Nor have the petitioners sought to aver that the CFSs are authorised service providers within the meaning of Section 42(3). 37.7 The inevitable sequitur is that Section 48 cannot even authorise framing, by the TAMP, of the scale of rates at which services are to be provided by CFSs or ICDs located outside Major Ports, as learned Senior Counsel for the CFSs and ICDs have correctly contended. The provisions of the Major Port Trusts Act do not, therefore, provide for any measure of control, whatsoever, over the tariff at which CFSs or ICDs located outside Major Ports would charge importers or exporters for storage of the goods, nor can they monitor, or injunct, collection of recovery of such charges, whether in the nature of penal exactions or otherwise. 37.8 This contention, as advanced by Mr. Vikram Nankani, learned Senior Counsel for the CFSs, we may note, also stands echoed by the Ministry of Finance as well as the Ministry of Shipping and the Director General of Shipp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt or on the land owned by or provided by any of the Major Ports has either not provided the exemptions/remission directed to be provided by way of the two orders issued by the MoS or having availed of such exemptions/remission has failed to pass on the benefit of the same to the end consumer, leading to any sort of unjust enrichment on the part of any of the ICDs/CFS. That being the case, the reliance placed by the Petitioners on the orders dated 31.3.2020 and 21.4.2020 would not in any manner advance the case of the Petitioners. (Emphasis supplied) 37.9 Even otherwise, the TAMP, under Section 48, merely fixes and approves the scales of rates for services to be performed by the Board or other persons. Even in respect of any CFS which may be located within the area of a Major Port and may, therefore, conceivably be amenable to Section 48 of the Major Port Trusts Act, all that the Section regulates are the scales of rates for the services to be performed by the CFSs or ICDs. There is no provision, in the Major Port Trusts Act, which can regulate the levying, charging or recovery, by the CFSs or ICDs, from their customers, of charges payable against storage of goods which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssarily to be such as would be amenable to compliance by the authority to whom the directions are issued. The authority issuing directions, in exercise of powers conferred by statute in that regard, has also to ensure that the body to whom the directions are issued is empowered to comply with such directions. It is as much folly, in law, to issue directives in excess of the authority vested in the one, as to issue directives to perform acts in excess of the authority vested in the other. 37.14 The Order dated 21st April, 2020 directs ports to ensure strict implementation of the circular by, inter alia, CFSs, ICDs and shipping lines. Neither the Board of Trustees of the port, nor the TAMP, is empowered by the Major Port Trusts Act, to regulate levy, collection and recovery of penal charges from the importers or exporters, by the CFSs, ICDs or shipping lines. At best, the framing of the tariff, in the case of ICDs or CFSs located within major ports, may be said to be required to conform to Section 48. This directive is, therefore, impossible of compliance. 37.15 The tariff charged by CFSs and ICDs which are not within the premises of any Major Port are not regulated by Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rajasthan (2008) 7 SCC 748, thus: 17. All irregular or erroneous or even illegal orders cannot be held to be null and void as there is a fine distinction between the orders which are null and void and orders which are irregular, wrong or illegal. Where an authority making order lacks inherent jurisdiction, such order would be without jurisdiction, null, non est and void ab initio as defect of jurisdiction of an authority goes to the root of the matter and strikes at its very authority to pass any order and such a defect cannot be cured even by consent of the parties. (See: Kiran Singh vs. Chaman Paswan AIR 1954 SC 340 ). However, exercise of jurisdiction in a wrongful manner cannot result in a nullity - it is an illegality, capable of being cured in a duly constituted legal proceedings. (Emphasis supplied) In a similar vein, it was held in para 54 of the report in DLF Universal Ltd. v. Director, Town and Country Planning Department, Haryana (2010) 14 SCC 1 , as under: 54. It is thus clear that there is no provision in the Act, the Rules or in the licence that empowers the Director to fix the sale price of the plots or the cost of flats. The impugned direct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with Regulation 6(3) of the HCCAR. Indian School has clarified, beyond any scope of doubt, that the Government, as well as the Disaster Management Authorities, cannot, in exercise of the powers conferred by the Disaster Management Act, issue directions in respect of economic aspects of legitimate subsisting contracts or transactions between two private individuals with which the State has no direct causal relationship, especially when the determination of compensation/cost/ fees is the prerogative of supplier or manufacturer of the goods or service provider of the services . In view of this unequivocal declaration of the law by the Supreme Court in Indian School, the submission of Mr. Sibal, that, in exercise of the powers conferred by the Disaster Management Act, the Government could interdict collection of penal charges by ICDs, CFSs or shipping lines, beyond the permitted free periods , is completely unacceptable. Irrespective of whether there existed, or did not exist, express written contracts between CFSs and ICDs and their customers, the relationship between the CFSs, ICDs and shipping lines, with the importers/exporters, was undoubtedly contractual in nature or, at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Order No. 08 of 2020 dated 31st March, 2020 and Order No. 11 of 2020 dated 22nd April, 2020, respectively. The jurisdiction of the DGS extends only to shipping lines, and not to CFSs or ICDs. Of these, Order No 07 of 2020 and Order No. 08 of 2020 are, expressly, mere advisories . 38.2 Where the authority issuing the order has itself chosen only to advice, rather than to direct, we are of the opinion that the Court cannot, by judicial fiat, transmute the advisory into a directive. Of course, the Court is empowered to, on its own account, issue directions in terms of advisories issued by executive authorities. The enforceability of such directions would, however, owe its origin not to the advisories issued by the authorities, but to the directive issued by the Court. Issuance of such a mandatory directive would, however, in the first instance, require clear evidence of the existence of a corresponding duty, on the authority to whom the mandamus is issued, to comply with such directive. 38.3 The third DGS Order No 11 of 2020, dated 22nd April, 2020 is, however, somewhat differently worded. The logic of wording this third Order differently from the Orders dated 29th March, 2020 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts Order, that the relationship between shipping lines and importers/exporters was contractual in nature, the DGS proceeds to also advice shipping companies or carriers not to impose any new or additional charge. The word also , in this passage is, in our considered opinion, of significance. It indicates that para 7 of the Order, though it purports to record the decision of the DGS, is also to be treated as an advisory, insofar as compliance with the said decision is concerned. We are unable, therefore, to construe Order No 11 of 2020 as being in the nature of a mandatory directive to shipping lines, as Mr. Sibal would seek us to hold. 38.4 The stark distinction between Order No 11 of 2020 of the DGS and the MOS Order dated 21st April, 2020 which was expressly worded in the form of a mandatory directive makes it appear that, unlike the MOS, the DGS was somewhat ambivalent about its authority or its jurisdiction to interdict levy or collection of penal charges by shipping lines from their customers, such charges being relatable to negotiated contractual terms . We endorse this sentiment. We have already had occasion to observe, hereinbefore, that the provisions of the Mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CBIC 39.1 The petitioners rely on a Circular, dated 23rd April, 2020, issued by the CBIC. The CBIC, interestingly, contends, before this Court, that the Circular was never intended to be mandatory or even directory in nature, and was merely by way of an inter-departmental communication from the CBIC to the Chief Commissioners and Principal Chief Commissioners of Customs under it, to ensure compliance with the Orders issued by the MOS. 39.2 To our mind, this is apparent from a reading of the Circular. The only mandate , if any, is to be found in the concluding para of the Circular, which merely requires the Chief Commissioners and Principal Chief Commissioners to ensure compliance with the order of the MOS by the ICDs and CFSs in their respective zones. The Circular cannot, therefore, be invested with any compulsive element, in excess of that contained in the Orders of the MOS or the DGS. We have already held that the petitioners are not entitled to capitalise on the Orders of the MOS and the DGS, to maintain a plea for issuance of a mandamus to ICDs, CFSs or shipping lines, not to charge penal charges from exporters and importers beyond the free period . Per corollary, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iterate our findings. Suffice it to state that the only mandate, on CFSs or ICDs, under the HCCAR, is to prominently publish the rates at which they charge their customers, including on their website or webpage, and, subject to any other law for the time being in force, not to charge demurrage and detention on goods which are seized, detained or confiscated by the Customs authorities. A detailed discussion on this aspect may be found in the judgement of this Court in Global Impex v. Manager, Celebi Import Shed, MANU/DE/4351/2019. We are unable to countenance the submission that the responsibilities cast on CFSs or ICDs by the HCCAR, in their capacity as Customs Cargo Services Provider would, per sequitur, make all executive instructions issued by the CBIC binding on them. The submission, to the said effect, as advanced by Mr. Sibal and other learned Counsel for the petitioners is, therefore, rejected. 39.6 Nor can Regulation 6(1)(q) of the HCCAR come to the aid of the petitioners in that regard. All that the said sub-regulation requires is for the Customs Cargo Services Provider is to abide by all the provisions of the (Customs) Act and the Rules, Regulations, Notificatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment Act, in the wake of the judgement of the Supreme Court in Indian School, would apply, mutatis mutandis, to the Circular of the CBIC. 39.11 Mr. Sibal also sought to submit that the tariff charged by CFSs or ICDs was required to be pre-approved by the Customs authorities, thereby indicating control, of the CBIC, over the recovery of charges by the CFSs or ICDs from the exporters or importers. We have already pointed out that there is a distinction between fixation of tariff and collection of charges in accordance with the tariff. The argument of Mr. Sibal is really irrelevant to the issue at hand, as the petitioners are not seeking any change in the tariff charged by ICDs or CFSs for storage of goods. What they are seeking is, essentially, interference with the right of ICDs, or CFSs, to recover charges, from importers, in accordance with the tariff so fixed, even where the goods continue to remain in their premises beyond the free period . Any accommodation, by us, to this request of the petitioners would, we are afraid, be in the teeth of the law enunciated by the Supreme Court in Indian School which, in no uncertain terms, proscribes the issuance of any directions, under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inks fit to be officers of Customs. The Board has, vide several notifications issued under the said Section, appointed Commissioners, Additional Commissioners, Joint Commissioners, Deputy Commissioners and Assistant Commissioners to be officers of customs within the area specified in the said notification. Accordingly, a Commissioner of Customs can notify a Container Freight Station as a customs area only within his prescribed jurisdiction. 3. Similarly with widespread industrialization and growth of industrial centres in the hinterland of the country, facility of customs clearance of imported/export goods has been made available at the doorsteps of importers/ exporters by way of opening of a large number of ICDs across the country. Necessary changes have been made in section 2(12) and 7(aa) of the said Act, specifically incorporating the term Inland Container Depot on par with other customs port/airport/Land Customs Station, etc. Accordingly, ICD is a place that acts as a self contained customs station like a port or air cargo unit where filing of customs manifests, bills of entry, shipping bills and other declarations, assessment and all the activities related to clearan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Commissionerate cannot be approved by the Commissioner as a CFS, if there is no ICD or seaport within its jurisdiction to which the said CFS can be attached. Such a facility can, however, be notified as an ICD i.e., as an independent customs station with provision for filing and assessment of documents and examination of goods. A customs clearance facility could be established as a CFS at a port city for examination of imported/export goods, since the CFS would fall under the jurisdiction of Commissioner of Customs, having jurisdiction over the customs port with which the CFS would be attached. Further, in a seaport city such as Chennai or Mumbai, it may be possible to develop an ICD also within the territorial jurisdiction of the concerned Customs Commissionerate in addition to existing CFSs. In case of such an ICD, it should be capable of providing full-fledged customs services, independent EDI system, and all procedures meant for transhipment of cargo have to be followed for movement of goods from the port of import to the ICD. Further, such an ICD would function as an independent Customs Station in all respects and would not be attached to any other port or airport. 8. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rance of goods, including filing of Customs manifests, filing of bills of entry and shipping bills and other declarations, assessment of the imported goods to duty and other activities related to clearance of imported goods for home use, warehousing, temporary admissions, reexport, etc., therefore, take place at ICDs. Para 4 clarifies that, in view thereof, ICDs are self-sufficient Customs stations and, for all practical purposes a Custom House, in the same way as a port or airport . The Circular, therefore, distinguishes between ICDs, which are Customs stations , and CFSs, which are Customs areas . The CFS, as a customs area is, by para 4, treated as an extension of the Customs Station , to decongest the ports. Part of the functions performed by the Customs Station, of unloading and loading of the goods and application/segregation thereof, takes place at CFSs. CFSs, therefore, are extensions of the Port/ICD. Even so, assessment of documents takes place centrally. 39.14 It would be unwise, in our opinion, to read more, in Circular 18/2009-Cus, than is contained therein. What the Circular seeks to clarify is the distinct role performed by ICDs and CFSs in the matter of cleara ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation, under Article 14, would be invidious only if it is hostile, and among persons identically situated. We are unable to hold that ICDs and CFSs, on the one hand, and importers and exporters, on the other, are identically situated. Learned Senior Counsel for the ICDs and CFSs have waxed, eloquently, on the near-insurmountable difficulties that their clients faced during the lockdown, consequent on the services rendered by ICDs and CFSs being declared as essential services and the issuance of Governmental directives to ICDs and CFSs to continue to perform during the said period. As a result, contended learned Counsel, that the ICDs and CFSs had to incur huge amounts of infrastructural and other expenses, including payments which were required to be disbursed to the workmen and employees. Even so, it was pointed out, the ICDs and CFSs did grant discounts, both across the board as well as in individual instances on a case-to-case basis, to importers and exporters who faced genuine difficulties. To expect the ICDs and CFSs to continue in this fashion, without any earnings by way of recovery of the amounts, contractually payable for the periods during which imported or exported goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n of India. It is not open to the Court just as it was not open to the executive authorities to approach the matter solely from the point of view of the importers or exporters, unmindful of the difficulties which were faced by the ICDs and CFSs during the lockdown, and the constraints under which they operated. Equity inherently inheres in the exercise of jurisdiction under Article 226, and we are not persuaded to hold that the equities of the present case are entirely in favour of the petitioner importers/exporters, and to the prejudice of the respondent ICDs/CFSs/shipping lines, as would warrant our inference under Article 226 of the Constitution of India. Conclusion 47. We regret, therefore, our inability to accede to the prayers in these petitions (except WP (C) 3649/2021). 48. In view of the aforesaid findings and decisions, the individual writ petitions are disposed of thus: W.P.(C) 2707/2021 49. The prayer clause in the writ petition reads thus: The Petitioner, therefore, prays that this Hon'ble Court be pleased: (a) Issue a writ of Mandamus and/or any other appropriate writ, order or direction to the Respondent No. 1 to 4 to take app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ders as this Hon'ble Court may deem to be fit and proper under the facts and circumstances of the present case. 52. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P. (C) 3171/2020 53. The prayer clause in the writ petition reads thus: In view of the fact and circumstances of the case, it is respectively prayed that this Hon'ble Court may he pleased to: a) Issue an appropriate writ, order or direction in the nature of Mandamus thereby issuing directions to the Respondent numbers 1, 2 and 4 for issuance of strict orders/ directions to be complied with by the Respondent nos. 6 to 23 and other CFS qua non charging of ground rent, demurrage, container detention charges or any other ancillary charges during the lockdown period in a time bound manner and report the compliance thereof to this Hon'ble Court; b) Issue an appropriate writ, order or direction in the nature of Mandamus thereby issuing directions to the Respondent numbers 1, 2 and 4 to ensure compliance of the notifications and orders, directions issued by them qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4033/4/2020-PD VII dated 21.04.2020 notification F.No.394/46/2020-Cus (AS) dated 23.04.2020 is refunded in full. d) Issue a Writ of Mandamus under Article 226 of the Constitution of India or any other appropriate writ, order or direction to the Respondent No. 1 to ensure that the normal free period to clear the consignments is allowed over and above the lockdown period i.e. from the date operations are normalized. e) Issue a Writ of Mandamus under Article 226 of the Constitution of India or any other appropriate writ, order or direction to the Respondent No.1, 2 3 to ensure that powers under Section 48 of the Major Port Trust Act be not exercised on the goods stuck at ports during the lockdown period. f) Issue a Writ of Mandamus under Article 226 of the Constitution of India or any other appropriate writ, order or direction to the Respondent No. 5 to respond appropriately to the representation of the Petitioner seeking the grant of a government stimulus package for the industry and directions to banks and NBFCs to take a lenient and proactive policy by providing adequate financial support to the Members. g) Pass any other or further order(s) that this Hon bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and 5 (Annexure P-7 , and P8 ) seeking enforcement of the Advisories are neither mandatory nor binding on the Petitioner s members i.e. the shipping lines; (d) That this Hon ble Court be pleased to declare that Respondent No.3 has no power to issue the said First, Second and the Third Advisories (Annexure P-4 , P-5 and P-6 ) either in the form of advisories or as mandatory directions; (e) That this Hon ble Court be pleased to declare that Respondent No.3 under the said First, Second and the Third Advisories (Annexure P-4 , P-5 and P-6 ) cannot override or interfere with private contracts between the shipping lines (Petitioner s members) and its customers (importers/exporters); (f) That this Hon ble Court be pleased to issue a Writ of Mandamus and/or any other appropriate writ, order or direction, thereby quashing and setting the First, Second and the Third Advisories (Annexure P-4 , P-5 and P-6 ) issued by Respondent No.3; (g) That pending the hearing and final disposal of the present Writ Petition, this Hon ble Court be pleased to stay the effect, implementation, operation and execution of the First, Second and the Third Advisories (Annexure P-4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... writ of mandamus, or any appropriate writ, order or direction to the Respondents to allow importers in India clear/take delivery of their consignments/goods/containers without payment of any storage charges, demurrages, detention charges, ground rent and any other penal charges or charges of such nature (on all uncleared containers) during the entire period of the lockdown (as may be extended from time to time) plus another 30 days as recovery period; e. Issue a writ of mandamus, or any appropriate writ, order or direction to Container Freight Stations, Inland Container Depots and shipping lines/shipping companies/shipping carriers (whether registered in India or not) directing them to refund all such amounts that they have collected (for the period from March 22, 2020 till lifting of the nationwide lockdown, as the case may be, plus another 30 days as recovery period) from the members of Petitioner No. 1 Association as storage charges, lease rentals and license fees related charges, demurrages, detention charges, ground rent, dwell time charges, anchorage charges and any other penal charges or charges of such nature; f. Issue a writ of mandamus, or any appropriate writ, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs in India clear delivery of their consignments/goods/ containers without payment of any storage charges, demurrages, detention charges, ground rent and any other penal charges of charges of such nature (on all uncleared containers) during the entire the lockdown (as may be extended from time to time) plus another 30 days as recovery period; e. Issue a writ of mandamus, or any appropriate writ, order or direction to Container Freight Stations, Inland Container Depots and shipping lines/shipping companies/shipping carriers (whether registered in India or not) directing them to refund all such amounts that they have collected (for, the period from 3 March: 22, 2020 till lifting of the nationwide lockdown, as the case may be, plus another 30 days as recovery period) from various importers including petitioner herein as storage charges, lease rentals and license fees related charges, demurrages, detention charges, ground rent, dwell time charges, anchorage charges and any other penal charges or charges of such nature; f. Issue a writ of mandamus, or any appropriate writ, order or direction to Container Freight Stations, inland Container Depots and piping lines/shipping compa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges, ground rent and any other penal charges or charges of such nature (on all uncleared containers) during, the entire period of the lockdown (as may be extended from time to time) plus another 30 days as recovery period; e. Issue a writ of mandamus, or any appropriate writ, order or direction to Container Freight Stations, inland Container Depots and shipping lines/shipping companies/shipping carriers (whether registered in India or not) directing them to refund all such amounts that they have collected (for the period, from March 22, 2020 till lifting of the nationwide lockdown, as the case may be, plus another days as recovery period) from various, importers including petitioners herein as storage charges, lease rentals and license fees related charges, demurrages, detention charges, ground rent, dwell time charges, anchorage charges and any other penal charges or charges of such nature; f. Issue a writ of mandamus, or any appropriate writ, order or direction to Container Freight Stations, inland Container Depots and shipping lines/shipping companies/shipping carriers (whether registered in India or not) directing them to levy tariffs (on nonpenal charges) as wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stitution of India or any other appropriate writ, order or direction to the Respondent No. 1 to ensure that the amounts paid by the Petitioner towards detention charge, demurrage, ground rent or any other charges and, or penalties are levied under protest to any Shipping Line, Ports/ICDs or CFSs in violation of the Order No. PD- 14033/4/2020-PD VII dated 21 April 2020, and notification F.No.394/46/2020-Cus (AS) dated 23 April 2020 is refunded in full; (c) Pass any other or further order(s) that this Hon ble Court may deem to be just, fair and equitable. 77. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P.(C) 5532/2020 78. The prayer clause in the writ petition reads thus: In view of the submissions made above and in the circumstances of the case, the petitioner most respectfully prays that this Hon ble Court may kindly be pleased to: (i) Issue a writ in the nature of Mandamus or any other appropriate writ or an order directing Respondent No. 1 to 3 to ensure strict compliance and implementation of their Orders and Directions is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is dismissed with no orders as to costs. W.P.(C) 7031/2020 82. The prayer clause in the writ petition reads thus: In view of the submissions made above, it is therefore, most respectfully prayed that this Hon ble Court may graciously be pleased to: (a) Issue a Writ of and/or in the nature of Mandamus be issued commanding the Respondent authorities, particularly the Respondent No. 2 and its men, agents, subordinates and associates to forthwith take steps against the Respondent No. 3 in terms of clause 10 of the circular dated 21st April, 2020, bearing No. PD-14033/4/2020-PD VII issued by the Director, Ministry of Shipping, Government of India and to forthwith ensure that the petitioner s articles which are lying in the custody of the Respondent No. 3 and in the lands of the Kolkata Port Trust are released upon payment of admitted rent and other charges for the period from 20th February, 2020 till 24th March, 2020; (b) Issue a Writ of and/or in the nature of Mandamus be issued commanding the Respondent authorities, particularly the Respondent Nos. 2 and 3 and each one of them, their men, agents, subordinates and associates to forthwith take steps so as to ensure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he validity of DGS Order no. 11 of 2020 dtd. 22nd April, 2020 (Exh. D) till 31st May, 2020 or till such time the Nationwide Lockdown is Lifted. (C) To issue writ of mandamus or any other appropriate writ, order or directions commanding the respondents to permit the petitioner to clear the imports covered by extending the benefit. (D) To direct the Respondent nos. 3 to 8 to refund an amount of ₹ 1,620,150.24 paid by the petitioner as against the detention charges within a period of two weeks. (E) Pending hearing and final disposal of this Writ Petition, direct the Respondent Nos. 3 to 8 to refund the amount of ₹ 1,620,150.24 paid by the petitioner as against the detention charges within a period of two weeks. (F) Pending hearing and final disposal of this Writ Petition, this Hon'ble High Court be pleased to direct the respondents to permit the petitioner to clear the imports covered by the Bill of Ladings (Exh. E) provisionally by extending the benefits of DGS Order 11 of 2020 dtd. 22nd April, 2020 (Exh. D) in the interest of justice and direct the Respondent nos. 3 to 10 to issue the final delivery order and to allow free period as per contractua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mandamus or any other appropriate writ, order or direction commanding the respondents to permit the Petitioner to clear the imports covered by Ext PI Bill of Lading by extending the benefit of Ext P6 and to reimburse any amounts already paid thereto; (iv) Issue any other appropriate writ, direction or order which this Hon ble Court may deem fit and just in the peculiar circumstances of this case. 91. It is not possible, in view of the discussion and conclusions at which we have reached, to grant these prayers. The writ petition is dismissed with no orders as to costs. W.P. (C) 9069/2020 92. The prayer clause in the writ petition reads thus: For these reasons and other reasons that may be urged at the time of hearing, it is most humbly prayed that this Hon'ble Court may be pleased to: (i) issue a writ of mandamus or any other appropriate writ, direction or order commanding the 1st and 2 nd Respondents to ensure strict compliance of Order No. PD-14033/4/2020-PD-VII dated 21.04.2020 (Ext P5) and DGS Order No. 11 of 2020 dated 22.04.2020 (Ext P6); (ii) extend the validity of DGS Order No. 11 of 2020 dated 22.04.2020 (Ext P6) till 30.06.2020 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No s 4 and 5 in respect of ground rent and Taxes payable thereon; and be further pleased to direct Respondent No s 4 and 5 to release and allow clearance of the goods imported by the petitioner (as detailed in Annexure K) without recovery and collection of any amount as ground rent and Taxes thereon; (C) That Your Lordships maybe pleased to issue a Writ of Prohibition or any other appropriate Writ, Order or direction completely and permanently prohibiting Respondent Nos 4 and 5 from charging and recovering any ground rent and storage charges from the petitioner for custody of the Petitioner's goods during the period of lockdown; (CC) That your Lordships may be pleased to issue a Writ of Mandamus or any other appropriate Writ, Order or direction directing Respondent Nos. 4 and 5 to return/restitute to the Petitioner amounts charged and recovered as ground rent charges and taxes thereon, and also directing Respondent Nos. 6 to 8 to return/restitute to the Petitioner amounts charged and recovered as container detention charges/demurrage and taxes thereon for the goods and containers detailed in Annexure K and M to the petition; (CCC) Pending hearing and final dispo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is dismissed with no orders as to costs. 100. The above decision shall not stand in the way of all or any of the official respondents taking a sympathetic or favorable view on any representation which may have been preferred before such respondent/ respondents by the petitioners in these petitions. 101. All these petitions stand disposed of accordingly. -------------------- Notes: 1. 8. Power to approve landing places and specify limits of customs area. The Principal Commissioner of Customs or Commissioner of Customs may (a) approve proper places in any customs port or customs airport or coastal port for the unloading and loading of goods or for any class of goods; (b) specify the limits of any customs area. This provision is required to be read in conjunction with Section 33 of the Customs Act: 33. Unloading and loading of goods at approved places only. Except with the permission of the proper officer, no imported goods shall be unloaded, and no export goods shall be loaded, at any place other than a place approved under clause (a) of section 8 for the unloading of loading of such goods. 2. 7. Appointment of customs ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e acquired or created; (ii) acquiring or creating resources identified under sub- clause (i); (iii) organisation and training of personnel and coordination of such training for effective Management of disasters; (c) Central Government means the Ministry or Department of the Government of India having administrative control of disaster Management; (d) disaster means a catastrophe, mishap, calamity or grave occurrence in any area, arising from natural or man-made causes, or by accident or negligence with results in substantial loss of life or human suffering or damage to, and destruction of, property, or damage to, or degradation of, environment, and is of such a nature or magnitude as to be beyond the coping capacity of the community of the affected area; (e) disaster management means a continuous and integrated process of planning, organising, coordinating and implementing measures which are necessary or expedient for (i) prevention of danger or threat of any disaster; (ii) mitigation or reduction of risk of any disaster or its severity or consequences; (iii) capacity-building; (iv) preparedness to deal with any disaster; (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government of India, the State Governments and the State Authorities regarding measures to be taken by them in response to any threatening disaster situation or disaster; 5. Jawahar Lal Nehru Port Trust 6. Jawahar Lal Nehru Custom House 7 . 53. Exemption from, and remission of, rates or charges. A Board may, in special cases and for reasons to be recorded in writing, exempt either wholly or partially any goods or vessels or class of goods or vessels from the payment of any rate or of any charge leviable in respect thereof according to any scale in force under this Act or remit the whole or any portion of such rate or charge so levied. Board is defined in clause (b) of Section 2 of the Major Port Trusts Act thus: (b) Board , in relation to a port, means the Board of Trustees constituted under this Act for that port; 8. 111. Power of Central Government to issue directions to Board. (1) Without prejudice to the foregoing provisions of this Chapter, the Authority and every Board shall, in the discharge of its functions under this Act be bound by such directions on questions of policy as the Central Government may give in writing from time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer [or in such manner as may be prescribed]. (3) Notwithstanding anything contained in any law for the time being in force, if any imported goods are pilferred after unloading thereof in a customs area while in the custody of a person referred to in sub-section (1), that person shall be liable to pay duty on such goods at the rate prevailing on the date of delivery of an arrival manifest or import manifest or, as the case may be, an import report to the proper officer under section 30 for the arrival of the conveyance in which the said goods were carried. 11. 141. Conveyances and goods in a customs area subject to control of officers of customs. (1) All conveyances and goods in a customs area shall, for the purpose of enforcing the provisions of this Act, be subject to the control of officers of customs. (2) The imported or export goods may be received, stored, delivered, despatched or otherwise handled in a customs area in such manner as may be prescribed and the responsibilities of persons enga ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
