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TMI Blog2021 (11) TMI 664X X X X Extracts X X X X X X X X Extracts X X X X ..... er is set aside. Appeal allowed - decided in favor of appellant. - Customs Appeal No. 54058 of 2018-SM - FINAL ORDER NO. 51897/2021 - Dated:- 27-9-2021 - MR. ANIL CHOUDHARY, MEMBER (JUDICIAL) Shri Rishi Kumar Awasthi Sh. Piyush Vats, Advocates for the appellant Shri Pradeep Gupta, Authorised Representative for the respondent ORDER This appeal has been filed by Container Corporation of India Limited, which is the custodian of the imported goods in terms of Section 45 of the Customs Act, 1962, at ICD, Tuklagabad, until the imported goods are cleared for home consumption or warehoused; as provided under Section 141 of the Customs Act read with Notification No. 26/2009 dated 17.03.2009-Cus., (Handling of Cargo in Customs Area Regulation, 2009). The challenge in this appeal is to imposition of penalty of ₹ 50,000/- under Regulation 12(8) of Handling Cargo in Customs Area Regulation, 2009 (HCCAR for short) and further imposition of penalty of ₹ 1 lakh under Section 117 of the Customs Act. 2. Section 141 of the Customs Act provides that the imported or exported goods may be received, stored, delivered, despatched or otherwise handled in a custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isaster. 5. As there was lot of hue and cry which took place on 06.05.2017, as many local people and children may be hospitalised, who were later on discharged after few hours of medical attention. All this was happening was in the knowledge of the Customs Department, who are also present on every working day for discharge of their duties at ICD, TKD. The appellant challenged the said order dated 09.05.2017 before the Delhi High Court in Criminal Revision No. 349/2017, wherein the respondents were State of Delhi and the Union of India (Customs Department) and others. The appellant had contended before the High Court that they are not disputing the requirement and direction for removal of materials all explosive chemical/ gas and explosive material which may be health hazard to the public at large in the vicinity, submission of disaster plan to mitigate in emergency/ disaster and undertaking from the appellant to be filed before the Court, to the effect that no container having obnoxious dangerous chemical /gas or explosive be allowed at the ICD, TKD. But the direction of the SDM to release all the containers from the site in a phased manner, and further not accepting any contai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontainer Depot of Tughlakabad, under the provisions of the Section 45 of the Customs Act, 1962. Accordingly, all imported goods that land at ICD Tughlakabad are required to remain in CONCOR s safe custody, till they are cleared for home consumption or are warehoused. As such CONCOR is required to allow the clearance of all imported goods unless DGFT has issued a port restriction for ICD TKD for Hazardous cargo as per IMDG . (ii) As per the HCCAR, the responsibilities of CONCOR include not permitting goods to be removed from the Customs area, except in accordance with the permission in writing of the Superintendent of Customs or Appraiser (Regulation 6 (f) of HCCAR). As such your action of removing the imported goods that have arrived at ICD TKD, to some other premises, without any permission of the Superintendent/Appraiser of Customs, is therefore in direct violation of the HCCAR. (iii) For access to and movement of imported goods without payment of duty, the Appellant have entered into Import Carrier bonds, with Customs at the gateway ports of Nhava Sheva, Mundra (RUD-6 of SCN) and Pipavav, as also with the Commissioner of Customs (Import), ICD Tughlakabad. One of the cond ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he said Public notice dated 16.05.2017. 10. Thereafter, the matter came up again before the Hon ble High Court on 31.05.2017 and after a detailed hearing, the learned Counsel for the appellant and Union of India was also present and was heard (Customs Department was Respondent No.2). The Hon ble High Court also took notice that the leakage actually happened outside of their premises ICD - TKD, when the containers were gated out after due process, and the importer had taken the delivery. It was also noticed that the appellant takes every care for the safe storage of container(s). The Hon ble High Court also took notice that it is the appellant CONCOR, which is required to comply with the Regulation regarding transportation and storage of hazardous commodities. The respondent Customs department has only to perform the statutory function under the Customs Act in the premises of CONCOR, ICD - TKD. The role of Customs Department is limited to ensure that the goods imported are in consonance with the Foreign Trade Policy and proper duties have been paid. The Hon ble High Court also took notice that the chemical leaked on 06.05.2017 namely Chloromethyl Pyridine, is a freely importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to take proper precaution, care for the storage and transportation of dangerous and hazardous goods. The High Court further observed that the comprehensive disastrous management plan by CONCOR is already in place, a copy of which has been filed before the Court. The Hon ble High Court also observed that the SDM have ignored that storage and transportation of dangerous / hazardous cargo is required for the growing business and economy of the country. It was further observed that disaster management plan of CONCOR includes technical and organisational manner to control, and neutralise the unintentional escape of hazardous material at all places during storage and transport. Also contains detailed guidelines with various standard operating procedures , minimizing the charges of mishap. Further, the emergency response instructions have also been issued and awareness programme is also in the offing. The undertaking of the CONCOR was taken on record, that instructions and guidelines shall be available at all terminals of the CONCOR. Learned Counsel for the Customs Department also drew attention of the Court that other agencies have also taken up the issue for finding out and fixing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision application in terms of its aforementioned directions and observations. 14. In terms of the order of remand, the SDM Kalkaji conducted a detailed enquiry into the matter. Learned SDM passed order dated 29.06.2018 as follows:- After hearing all the parties and examining the evidence adduced by them, it needs to be decided whether the existence of CONCOR Depot is a nuisance and to ensure the safety of people and environment, if the nuisance really exists, as directed by the Hon ble High Court, dated 31.05.2017. The Hon ble Court has rightly pointed out that growing business and variety of cargo transported in the containers throughout the country, some risk is always involved and handling of such container / cargo is important aspect for the growth of country. If a blanket ban order is imposed on the hazardous articles/ chemicals/ gases, it would be greatly prejudicial to the national interest. It may also be pointed out that for safety, sovereignty, R D and progress of the nation, a lot of such articles are essential such as arms, ammunition, nuclear energy etc. which are used by the Armed forces and the Health sector, although such items are not stored at ICD/ Concor D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... afety methods are not possible as any human negligence, Act of God like floods, cyclone, earthquake etc., and mechanical failure can cause an accident. Hazardous commodities including crop protection items, batteries, paint materials, acids, etc. and other daily public utility items which are under the category of hazardous articles, are not only needed for public life but are extremely important for growth of the nation. We have to adopt a balanced approach in weighing the safety/ security of the public on the one hand and compulsions and needs of modern and industrial nation, which is in the process of further growth. A bit of risk is always posed in handling such items. The Hon ble Court also took note of the comprehensive Disaster Management Plan of the CONCOR to prevent mishaps and to minimize the accidents and losses from all types of disasters like, fire, chemical leaks, spills, terrorist activities, earthquakes etc. The Hon ble Court also appreciated the prompt action taken by the Delhi Police and ICD in rescuing and providing the relief to the victims on 06.05.2017. Therefore, in view of the facts/ positions stated in this report it becomes crystal clear that the exi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he clearance of imported goods unless DGFT issues a port restrictions for any commodity in respect of ICD - TKD, which is yet to be issued. Thus, the Public Notice dated 16.05.2017 issued by CONCOR appears to have been issued without authority of law. It was further alleged that CONCOR has removed goods from the customs area i.e. ICD - TKD without permission of the proper officer as required under Regulation 6(f) of HCCAR. Further, the condition of the Bond given by CONCOR is that, CONCOR has to furnish evidence to the satisfaction of the proper Officer, within one month of despatch of each consignment of import, that the goods transported by them have duly landed at the destination port which is ICD - TKD. Further alleged, the action of CONCOR in stopping the goods meant for ICD - TKD and redirecting them to ICD, Khatuwas, is in direct contravention of the condition in the Bond, as well as the violation of Section 54 of the Customs Act. It was further stated in the show cause notice that para 8(D) of general notice regarding import policy of ITC (HS) 2017, the import of hazardous chemical is subject to manufacture, Storage of Import of Hazardous Chemical Rules, 1989 under the En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iv) Further, no adverse inference can be drawn for issue of Public Notice dated 16.05.2017, which has been issued as per the directions of the State Administration (SDM), which had been confirmed by the Hon ble High Court by its interim order, and all this was in the knowledge of the Customs Department, as they were also party before the Hon ble High Court, and also have been involved in all the events following the gas leakage from the container in the vicinity of the ICD, Tughlakabad. v) There is no allegation that the goods (hazardous chemical) which had leaked outside the premises of ICD, was part of Schedule (i), (ii) or (iii) of the Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 . vi) Further, the learned Commissioner have failed to appreciate that the appellant have not violated any conditions (regarding safety, security) in import and export of hazardous goods under their custody, nor have failed to comply with the protection of the Environment Act and Rules, Regulations issued thereunder. vii) Learned Commissioner have failed to appreciate that appellant has already made proper arrangement for separate storage in the Customs area for hazardou ..... 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