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TMI Blog2022 (7) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... RECTORATE OF REVENUE INTELLIGENCE (ZONAL UNIT) , MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CHENNAI [ 2015 (8) TMI 1552 - MADRAS HIGH COURT] for a Mandamus to consider the petitioner's representation dated 29.01.2015. The petitioner had stated that the Chinese supplier supplied the restricted Gas by mistake instead of R410A Refrigerant Gas contrary to purchase order proforma invoice and R22 gas which was to be exported to Panama were wrongly sent to India and therefore that the petitioner may be allowed to re-export the goods to the supplier back in China - The said writ petition came to be disposed of by order dated 24.08.2015 directing the respondent to consider the petitioner's representation on imported consignment in four tanker containers vide four Bills of Entries back to the supplier. The imported consignment after their import into India was stored in the fourth and fifth respondents Container Freight Station. The facts on record clearly indicate that the official respondents have also not co-operated with the petitioner for re-export R22 Refrigerant Gas, despite, the Order in Original No.43805 of 2016 dated 05.01.2016 of the second respondent and the subseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Respondents R1 to R3 (in both W.Ps.) : Mr.V.Sundareswaran Senior Standing Counsel For the R4 R5 (in both W.Ps.) : Dr.R.Sunitha Sundar COMMON ORDER By this common order both the writ petitions are being disposed of. 2. These writ petitions have been filed for the following relief: Sl.No. W.P.No. Prayer 1. W.P.No.23755 of 2017 Petition filed under Article 226 of the Constitution of India to issue a Writ of Declaration declaring the impugned communication dated 23.12.2016 in F.No:S.Misc.895/2016-Group-2 issued by the third respondent to the fourth and fifth respondents, as illegal, without jurisdiction, against the provisions of the Act, and null and void. 2. W.P.No.23756 of 2017 Petition filed under Article 226 of the Constitution of India to issue a Writ of Mandamus directing third respondent to issue the Detention Certificate and other appropriate directions to the concerned Authorities to enable the petitioner to comply with the Order-in-Original dated 05.01.2016 bearing No.43805/2016 by re-exporting ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R22 Refrigerant Gas. However, in the Bill of Entry filed for clearance of the aforesaid gas, the petitioner had declared it Refregerant Gas R410A. The Department refused to allow the clearance of imported consignment since the imported consignment was of restricted items in terms of the relevant classifications and the import was without a valid import licence. The petitioner was thus not allowed to clear the imported consignment. The petitioner had earlier filed W.P.No.4207 of 2015 for a Mandamus to consider the petitioner's representation dated 29.01.2015. The petitioner had stated that the Chinese supplier supplied the restricted Gas by mistake instead of R410A Refrigerant Gas contrary to purchase order proforma invoice and R22 gas which was to be exported to Panama were wrongly sent to India and therefore that the petitioner may be allowed to re-export the goods to the supplier back in China. 6. The said writ petition came to be disposed of by order dated 24.08.2015 directing the respondent to consider the petitioner's representation on imported consignment in four tanker containers vide four Bills of Entries back to the supplier. The imported consignment after their ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enerated between 27.01.2015 to 19.10.2015. 11. It is the specific case of the petitioner that only a partial waiver was granted as per the aforesaid letter dated 23.12.2016 of the third respondent. It is submitted that it is contrary to the Order-in-Original No.40007/2015 in F.No.CAU/DRI/CHE/19/2015 dated 23.07.2015 of the second respondent, wherein, it has been specifically stated that the investigation in the subject case could not be completed by the Officer Directorate of Revenue Intelligence and therefore, Show Cause Notice under Section 124 of Customs Act, 1962 could not be issued within the six months period from the dates of seizure (29.01.2015, 30.01.2015 and 16.03.2015) of the impugned goods, as stipulated by law and in view of the need to thoroughly investigate the entire activities of the companies and involvement of all the persons concerned in the said case of illegal import of R-22 Refrigerant gas by mis-declaring the description and illicit import of R-134a by mis-declaring the description to evade payment of anti-dumping duty, in the name of M/s.Sherisha Technologies by Shri Anil Jain, Directorate of Revenue Intelligence, Chennai Zonal Unit sought extension of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 6(1)(l) of the aforesaid regulations in terms of which the fourth and fifth respondents are not required the charge or rent or demurrage due to seizure, detention of confiscated goods. 17. The learned counsel for the petitioner has placed reliance on the following deccisions of this Court as under: i. Quatar Airways v.Commissioner of Customs (AIR), Chennai reported in 2020 (373) E.L.T.631(Mad.). ii. Continental Carbon India Ltd., v. Union of India reported in 2018 (361) ELT 193 (SC). iii. Max Enterprises v. Deputy Commissioner of Customs, Chennai reported in 2019(367) ELT 753 (Mad.). iv. Priyanka Enterprises v. Joint Commissioner of Customs, Chennai reported in 2018(360)ELT 962 (Mad.). v. Balaji Dekors v. Commissioner of Customs, Commissionerate-III, Chennai reported in 2017 (356) ELT 219(Mad.). vi. Lala Shri Bhagwan Anr. v.Shri Ram Chand Anr. Reported in AIR 1965 SC 1767. vii. P.Perichi Gounder Memorial v. Commissioner of Customs (Appeals-II), Chennai reported in 2019(368)E.L.T.495(Mad.). 18. The learned counsel for the petitioner, therefore submits that there is no justification in waiving only up to the date of payment of Custom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and continuing to provide service to the petitioner herein and therefore, the petitioner is duty bound to pay the charges. 26. The learned Senior Standing Counsel for the offiial respondents has relied on the following decisions as follows: 1. M/s.RM Trading v. The Principal Commissioner of Customs, Chennai-III, Commissionerate Customs House, Chennai and 2 others reported in 2021-TIOL-1496-HCMAD- CUS. 2. M/s.Isha Exim v. The Commissioner of Customs, Chennai II, Commissionerate, Customs House, Chennai and 3 others reported in W.P.Nos.765 and 1114 of 2018. 27. The lerned counsel for the fourth and fifth respondents submits that the imports made by the petitioner are illegal imports and that there was a contractual relationship between the petitioner and therefore, the respondents four and five state that the order came to be passed by the third respondent by Order-in-Original No.43805 of 2016 dated 05.01.2016. 28. The learned counsel for the fourth and fifth respondents has placed reliance on the following decisions of the Hon'ble Supreme Court of India as well as this High Court and Delhi High Court. 1. M/s.International Airports Authority of Inia v. M/s. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I impose a penalty of Rs.10,00,000/-( Rs.Ten Lakh Only) on M/s STPL under Section 112(a) of the Customs Act, 1962. v. I impose a penalty of Rs.10,00,000/-( Rs.Ten Lakh Only) on Sh.Anil Jain, MD of M/s.STPL under Section 112(a) of Customs Act, 1962. vi. I levy a penalty of Rs.5,00,000/-(Rs.Five Lakh Only) on Anil Jain under Section 114AA of the Customs Act, 1962. However, I refrain from levying penalty on M/s.STPL under Section 114AA of Customs Act, 1962 since no knowledge or intention may be attributable to a legal person. 31. The petitioner has also paid the redemption fine and penalty imposed by the second respondent vide Order in Original No.43805 of 2016 dated 05.01.2016. Therefore, the petitioner should have been allowed to re-export the imported R22 refrigerant gas back to the foreign exporter from China at least after 22.01.2016. 32. However, the petitioner filed appeal before the Commissioner Appeals against the aforesaid order in Appeal Nos.C3-II/181/O/2016-Sea and C3-II/182/O/2016-Sea. These appeals were eventually dismissed by the Commissioner (Appeals-II) vide Order in Appeal C.Cus II No.373 374/2016 dated 19.04.2016 bearing reference No.C3-II/181 182/O/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi High Court in the case of Trip Communication Private Limited Vs. Union of India in W.P.(C.No).7438 of 2014 dated 28.03.2014 in Quatar Airways Vs. The Commissioner of Customs (AIR), Chennai, 2020 (373) E.L.T.631 (Mad.). 38. It will be useful to extract the discussion from Quatar Airways Vs. The Commissioner of Customs (AIR), Chennai, 2020 (373) E.L.T.631 (Mad.) for the purpose of this case. Therefore paragraphs 55 to 92 are extracted below: 55. The Airport Authority of India (Storage and Processing of Cargo, Courier and Express Goods and Postal Mail) Regulations, 2003 fixes the charges for processing of the Cargo and also formulates policy for waiver of such demurrage charges. 56. The expression Terminal Storage and Processing Charges has been defined in Regulation 2(zc). It means the charges to be levied or collected by the authority or any authorized cargo handling agency for use of cargo terminal facilities, audit services and other expenses incurred including loading and unloading, storage and warehouse or processing cargo goods etc. and includes electricity charges, insurance premium, security charges, terminal charges electronic data interchange ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ating or correcting the license in ordinary course of appraisal. 64. The Delhi High Court has dealt with the same in Trip Communication Private Limited Vs. Union of India in its order dated 28.03.2014 in W.P.(C.No).7438 of 2014. It has extracted relevant portion of the aforesaid policy relating to waiver of demurrage charges. It reads as under:- 10.1 GENERAL 10.1.1 Subject to such policy, rules and procedures as may be described the authorities specified hereunder are authorised to sanction, in consultation with the Finance and Accounts Department, remission/waiver of demurrage charges regarding Cargo Operation. 10.1.2 10.1.10 Demurrage charges shall not be waived where: (a) Any fine/penalty/personal penalty/warning is imposed by the Customs Authority. (b) Delay arose by reason of dispute in the assessable value or for revalidating or correcting the licence in ordinary course of appraisal. 65. The authority namely AAI can thus grant waiver/ remission of demurrage charges in consultation with the Finance and Accounts Department and grant regarding cargo operation. However, to grant such relief it relies on customs documents. 66 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cosmetics Act, 1940 and for being forwarded to the Central Drugs Laboratory, Calcutta, as the importers can avail of the facility of clearing the goods against letters of guarantee and need not wait till the receipt of the test report. (c) The period taken for mutilation of woollen rags in the docks. (d) Cases where goods are detained in the ordinary course of appraisement such as for determination of the tariff classification of goods or their assessable value in terms of Section 14 of the Customs Act. 67. Regulation 6(1)(l)of the Handling of Cargo in Customs Area Regulations, 2009 mandates that the Customs Cargo Service provider shall 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. 68. As per Regulation 6(1)(l) of the Handling of Cargo in Customs Area Regulations, 2009, a Customs Cargo Service Provider which includes the Air Port Authority of India cannot charge any rent or demurrage on the seized or detained or confiscated goods by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in concessions may be given taking into account the hardship of the importers, but the legality of the rates cannot be questioned. 75. The Court further went on to hold that the importer of the goods was liable to pay the demurrage charges even if the importer was not responsible for any delay, or any fault could be attributed to the importer. 76. In International Airports Authority Vs. Grand Slam International, (1995) 3 SCC 151, the Hon ble Supreme Court took note of Section 45 of the Customs Act and held as follows:- 41. None of these provisions entitles the Collector of Customs to debar the collection of demurrage for the storage of imported goods. They do not entitle him to impose conditions upon the proprietors of ports or airports before they can be approved as customs ports or customs airports. Section 45 provides that all imported goods imported in a customs area must remain in the custody of the person who has been approved by the Collector of Customs until they are cleared and such person is obliged not to permit them to be removed from the customs area or otherwise dealt with except under and in accordance with the permission of the Customs Officer. Secti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be entitled to charge demurrages for the imported goods in its custody and make the importer or consignee liable for the same even for periods during which he/it was unable to clear the goods from the customs area, due to fault on the part of the Customs Authorities or of other authorities who might have issued detention certificates owning such fault. 69. Therefore, my answer to the question considered by me is in the negative i.e. the Collector of Customs empowered under sub-section (1) of Section 45 of the Customs Act, 1962 to approve persons to be custodians of imported goods in customs areas until they are cleared as provided for therein, while approving the International Airports Authority of India to be the custodian of such imported goods in the customs area of Indira Gandhi International Airport, New Delhi and Central Warehousing Corporation to be the custodians of such imported goods received at the customs area- the Container Freight Station, CWC Complex, Pragati Maidan, New Delhi, by issue of public notice or otherwise in that regard, if by such notice or otherwise directs such custodians not to collect custody charges from the consignees of such goods- the Ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the Regulations nor can the provisions of the Customs Act impinge or in any manner affect the statutory power of the Major Port Trusts to levy rates under the Act. In fact, the Authority that framed the Regulations was itself aware of this because Regulation 6(1)(l) itself begins with the words subject to any other law for the time being in force . It is, therefore, obvious that the Regulations are subject to any other law including the Major Port Trusts Act. Therefore, these Regulations cannot in any manner affect the right of the Port Trust. We are, therefore, of the view that the High Court erred in holding that the law settled by this Court in a catena of judgments referred to above was no longer applicable in view of the 2009 Regulations. Reliance placed by the Union of India on Section 128 of the Major Port Trusts Act is totally misplaced. This provision only deals with the right of the Central Government to collect customs duties. It does not deal with the rights of the Port Trust to collect rates including demurrage. 36. The next issue which arises is whether any direction could be issued to the DRI/Customs Authorities to pay the demurrage charges to the Port Trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... torage and Processing of Cargo, Courier and Express Goods and Postal Mail) Regulations, 2003. Therefore, this Court is not inclined to hold that such certificate can be issued at all. 82. The authorities under the Airport Authority Act, 1994 require certificate from the Customs for granting waiver from payment of demurrage under the policy framed under Regulation 6 of the Airport Authority of India (Storage and Processing of Cargo, Courier and Express Goods and Postal Mail) Regulations, 2003. 83. In fact, such certificate need not be confined to the circumstances specified in Public Notice No.111 of 1985 dated 29.07.1985 of the Bombay Custom House alone. It can be issued in appropriate case to cover the circumstances specified in the Policy of the Airport Authority as per Regulation 6 of the Airport Authority of India (Storage and Processing of Cargo, Courier and Express Goods and Postal Mail) Regulations, 2003 as was noted in Trip Communication Pvt. Ltd. (cited supra) by the Delhi High Court. 84. As far as the present case is concerned, since none of the circumstances noted by the Delhi High Court in Trip Communication Private Limited Vs. Union of India are attracte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocessing the transshipment application were arrested as was claimed by the petitioner and whether such arrest resulted in disruption of operation at the Air Cargo Complex. If so, the petitioner shall be compensated. 91. The 1st respondent is therefore directed to pass appropriate orders within a period of three months from the date of receipt of a copy of this order. Meanwhile, the petitioner is directed to pay the amounts that are due to the 3rd and the 4th respondents. 92. This Writ Petition stands disposed with the above directions. No cost. Consequently, connected Miscellaneous Petition is closed. 39. The facts on record also indicates that the petitioner was forced to approach this Court earlier in W.P.No.4207 of 2015 and W.P.No.15563 of 2017 which came to be disposed by an order dated 24.08.2015 and 21.06.2017 respectively. 40. The former writ petitions was filed for a mandamus to consider the petitioner s representation for permitting the petitioner to re-export the imported consignment of R22 Refrigerant Gas which was later allowed to be re-exported on payment of redemption fine/penalty on 24.08.2015, by directing the official respondents to decide the iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 19.10.2015 and passing of the Commissioner of Customs (Appeal-II) vide Order in Appeal C.Cus II No.373 374/2016, bearing reference No.C3-II/181 182/O/2016-SEA dated 19.04.2016 will have to be borne by the petitioner, as the petitioner showed no inclination to re-export the consignment. For the period thereafter, the loss caused to the fourth and fifth respondents on account of storage of R22 Refrigerant Gas will have to be borne by the Customs Department. 46. Since the goods are still reportedly in the custody of the fourth and fifth respondents, I direct the official respondents as also the fourth and fifth respondents to permit re-export of the imported consignment by the petitioner to the foreign exporter from China provided the consignment of imported R22 Refrigerant Gas are still there in the containers and have not evaporated due to efflux of time as expeditiously as possible from the date of receipt of a copy of this order, subject to the petitioner paying the demurrage charges to the fourth and fifth respondents for the period between 19.10.2015 up to 19.04.2016 together with applicable interest. 47. The amount is directed to be calculated by the fourth and fift ..... X X X X Extracts X X X X X X X X Extracts X X X X
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