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TMI Blog2023 (4) TMI 516X X X X Extracts X X X X X X X X Extracts X X X X ..... ditions of the advance license can seek for waiver or complete waiver of the warehousing charges. The appellant having accepted the order-in-original holding him guilty of violation of the terms and conditions of the advance license and the provisions of the Act and the goods having detained and kept in the custody of the warehouse from 2002, a vested right accrues in favour of CWC to recover the rent payable to them and therefore the demand made on the appellant by CWC, atleast up to the date when the provision was amended is valid and proper and the said amount already paid by the appellant need not be returned or refunded to the appellant. Appeal dismissed. - HON BLE MR. ACTING CHIEF JUSTICE T.S. SIVAGNANAM AND HON BLE MR. JUSTICE HIRANMAY BHATTACHARYYA Appearance:- For the Appellant : Mr. Atish Dipankar Roy, Adv. Mr. Soumyajit Mishra, Adv. For the Respondent : Mr. K.K. Maity. Adv. Ms. Manasi Mukherjee, Adv. Mr. Kaushik Dey, Adv. JUDGMENT (T.S. SIVAGNANAM, ACJ.) 1. This intra court appeal filed by the writ petitioner is directed against the order passed by the learned single bench in WPO No. 568 of 2019 dated 05.12.2022. 2. We have heard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order passed by the tribunal and passed the order dated 05.01.2018 reiterating the conclusions which were arrived at in the first order-in-original dated 31.10.2005. The appellant unconditionally accepted the order paid the entire amount which was demanded in the order-in-original namely fine in lien of the confiscation, duty, interest and penalty. After the payment of the amounts as quantified in the order-in-original dated 05.01.2018, seven out of the eight containers which were in the custody in the DRI were released to the appellant however one of the container was not released as it was in a bonded warehouse of the Central Warehousing Corporation (CWC). The said container was not released on the ground that unless and until the appellant pays the warehousing charges/rent to the CWC, the same cannot be released. By communication dated 29.03.2019, the Assistant Commissioner of Customs directed the appellant to pay the charges since the goods were kept from October 2002 and the amendment to Section 68 of the Act made in 2016 would not be applicable. The appellant had accordingly paid the amount under protest on 24.08.2019 and thereafter filed the writ petition for the aforemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sought to removed and therefore the amendment will have retrospective effect. Thus, it is contended that when there was no provision under which the authorities can demand rent or warehousing charges from the importer, the amount which was paid by the appellant under protest has to be returned to the appellant. 7. The learned advocate appearing for the appellant has drawn our attention to the material papers annexed with the stay petition to demonstrate about the various orders which were passed by the authorities and ultimately communication sent by the Deputy Commissioner of Customs Group-IV, Customs House, Kolkata dated 18.09.2009 wherein it was acknowledged that the appellant has paid the applicable duty, interest, fine and penalty and NOC from the DRI has also been issued to release the goods subsequent to adjudication of the case by the Commissioner of Customs (Port) and therefore the Deputy Commissioner of Customs, SPS (Port), Kolkata was directed to allow for clearance under the supervision of the preventive officer. It is submitted that inspite of such a direction, the goods were not released. By letter dated 17.11.2018, CWC informed DRI that the appellant had stated t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned advocate appearing for the appellant prayed for allowing the appeal. 9. The learned standing counsel appearing for DRI contended that the order-in-original passed by the adjudicating authority has been accepted in full by the appellant, consequently the detention and seizure of goods are valid and therefore the appellant is liable to pay the warehousing charges to CWC. The learned advocate referred to Section 63 of the Customs Act before omission i.e. with effect from 14.05.2016 and submitted that prior to the said date the appellant is liable to warehousing charges/rent to CWC. To draw a comparison as to the effect of the amendment the learned advocate referred to Section 129E of the Act which is also one of the provisions which stood substituted. In support of his contention, reliance was placed on the decision of the Hon ble Supreme Court in Chandra Sekhar Jha Versus Union of India and Others in Civil Appeal No(s). 1566 of 2022 dated 28.02.2022 wherein the Hon ble Supreme Court held that the amended provision (Section 129E) had come into force from 06.08.2014 and the stay applications and appeals which were pending before any appellate authority prior to the commencem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ibunal before this court after the order of adjudication dated 05.01.2018 gave up the challenge and accepted the order-in-original, paid the redemption fine, penalty and interest. The goods were imported in eight containers and seven containers which were in the custody of DRI were released on payment of the redemption fine, duty and penalty. The eighth container was in the custody of the warehouse of CWC. The dispute hinges upon the release of the 8th container. The CWC had demanded the payment of warehousing charges/rent as a pre-condition for the release of the container. The appellant though has paid the rent in full would contend that the payment was made under protest and on the account of amendment to Section 68 of the Act whatever has been collected from the appellant has to be returned. The appellant relied upon the Regulation 6(l) of the Handling of Cargo and Customs Areas Regulation (2009) and would contend that CWC cannot charge any rent or demurrage on the goods detained/confiscated by the department. The Hon ble Supreme Court in Gottumukkala Venkata Krishamraju (supra) while dealing with the effect of substituted provision held as follows:- Ordinarily wherever ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... brought into existence in its place. In the aforementioned decisions of the Hon ble Supreme Court after pointing out the above aspects, it has also been pointed out that in certain situations, the court having regard to the purport and object sought to be achieved by the legislature may construe the word substitution as an amendment having a prospective effect. Therefore it was held that a universal rule that the word substitution necessarily or always connotes two several steps, that is to say one of repeal and another of fresh enactment even if it emphasis two steps. Bearing the above legal principles in mind, we need to examine the factual position in this case. The eighth container in which the goods were imported were ceased by the DRI in the year 2002 and in February 2003 show cause notice was issued as to why the goods should not be confiscated under Section 111 of the Act. Out of the eight containers, seven containers in the custody of the DRI were released and one container was in a bonded warehouse of the CWC was not released. The dispute is only with regard to the 8th container. On the date when the container was warehoused, the warehousing agencies namely CWC was enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich has accrued in favour of the appellant. It appears that the revenue has not seriously contested the matter with regard to the effect of the amending act and in any event if an occasion arises at a later date this question being of law has to be decided. The case of the revenue is fortified by the decision of the Hon ble Supreme Court in Chandra Sekhar Jha. The challenge in the order passed by the High Court rejecting the appeal filed against the order passed by the tribunal on the ground that the requirements with regard to the pre-deposit of the amount in terms of Section 129E of the Customs Act, 1962 was not complied with. Section 129E of the Customs Act as it stood before the substitution by Act 25 of 2014 gave discretion to the appellant tribunal under certain circumstances to dispense with the pre-deposit. By virtue of substitution of the new Section 129E by Act 25 of 2014, this discretion of the tribunal was done away with and the appellant who intend preferring the appeal before the tribunal or the Commissioner of Appeals are to compulsorily deposit 7.5% of the duty where the duty or duty and penalty are in dispute or penalty where such penalty is in dispute. The second ..... X X X X Extracts X X X X X X X X Extracts X X X X
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