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TMI Blog2024 (3) TMI 369X X X X Extracts X X X X X X X X Extracts X X X X ..... oms from different Commissionerate's in the country. 3. In W.P. Nos. 5058 of 2020, 5069 of 2020 & 5418 of 2020, the petitioners have challenged the Impugned Public Notice No.4 of 2020 dated 17.01.2020 issued by the 2nd respondent therein, the Commissioner -IV, Chennai. 4. In W.P. Nos. 5067 of 2020, 5071 of 2020 & 5421 of 2020, the petitioners have challenged the Impugned Public Notice No.7 of 2020 dated 28.01.2020 issued by the Commissioner-IV, Chennai. Similarly, in W.P.(MD). Nos. 4728 of 2020 & 5575 of 2020, the petitioners have challenged the Impugned Public Notice No.1 of 2020 dated 30.01.2020 issued by the Commissioner, Thoothukudi. Similarly, in W.P.(MD). Nos. 4740 of 2020 & 5554 of 2020, the petitioners have challenged the Impugned Public Notice No.2 of 2020 dated 03.02.2020 issued by the Commissioner, Thoothukudi. 5. Details of impugned public notices and the corresponding Writ Petitions are detailed as under:- Sl. No. W.P.No. Date Impunged Public Notice No. Commissionerate 1. 5058 of 2020 17.01.2020 4/2020 Chennai IV 2. 5067 of 2020 28.01.2020 7/2020 Chennai IV 3. 5069 of 2020 17.01.2020 4/2020 Chennai IV 4. 5071 of 2020 28.01.2020 7/2020 Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... may be brought immediately to the notice of the undersigned at [email protected] " 7. A similar case was filed before the Kerala High Court by the petitioners in W.P.No.5058 of 2020, W.P.(MD).No.4728 of 2020 & W.P.(MD).No.4740 of 2020 on 10.03.2020. There, the petitioners had challenged Public Notice No.5/2020 dated 03.02.2020. Public Notice No.5/2020 dated 03.02.2020 is a verbatim reproduction of impugned public notices which are under challenge in these Writ Petitions. 8. Details of the petitioners there and the petitioners before this Court are shown in this tabulation:- Sl.No. Name of the Petitioner in Kerala High Court Judgment Petitioner before this Court 1 The Container Shipping Lines Association (India) A Society registered under the Societies Registration Act, 1860, Having its Registered Address at Mackinnon Macknenzie Building, Ballard Estate, Mumbai - 400 001. Represented by its Chief Executive Officer, Mr.Sunil Vaswani W.P. Nos. 5069 of 2021, 5071 of 2020&W.P.(MD). Nos. 4728 of 2020& 4740 of 2020 2 CMA CGM Agencies (India) Ltd., Having Address at Office No.219, 2nd Floor, Metro House, Opp. PMTC, Off Wadia College, Mangaldas Road, Pune - 411 001, Maharasht ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt on the same cause of action. 11. Aggrieved by the dismissal order of the High Court of Kerala on 11.03.2020, W.A. No. 333 of 2021 has been filed before the Hon'ble Division Bench of the High Court of Kerala and the same is said to be pending as on date. There are no records to indicate any stay of the Order dated 11.03.2020 of the High Court of Kerala in W.P.(C). No.7435 of 2020(D). These writ petitions are therefore liable to be dismissed on the grounds of resjudicata and for forum shopping. 12. By the impugned Public Notices, collection of Terminal Handling Charges ("THC") by Shipping Lines has been discouraged. Importers having AEO status availing DPD facility for containerized cargo, have been allowed the facility of paying Terminal Handling Charges ("THC") and the other charges of the port terminal directly to the Terminal Operators instead of paying it to the Shipping Lines. This has allegedly impinged the rights of the petitioners and thus they are up in arm before this Court once again having tasted failure. 13. As per the impugned Public Notices, all eligible importers who have opened P.D account with the Terminal Operators have been given the option to pay such Ter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... impugned Public Notice has been issued by the Commissioner's of the respective Commissionerate. Hence, it is submitted that the Impugned Public Notices are unsustainable. 20. It is submitted that Section 2(30-AA) of the Customs Act defines 'notification' as follows:- ""notification" means notification published in the Official Gazette and the expression "notify" with its cognate meaning and grammatical variation shall be construed accordingly." 21. It is submitted that no notification has been either published or issued in the official gazette of the Central Board of Indirect Taxes and Customs (CBIC). It is submitted that CBIC has also not delegated its powers under Section 143AA to 2nd respondent to enable 2nd respondent to issue the Impugned Public Notice. 22. It is submitted that an application was filed under the Right to Information Act, 2005. The documents received pursuant to the said Application show that there is no gazette notification that was issued by which Central Board of Indirect Taxes and Customs (CBIC) has delegated its powers (in respect of levy of Terminal Handling Charges allegedly under Section 143AA) to any other entity. The said Application and doc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... embers of EXIM trade, rather than an action under Section 143AA. (ii) The Letter has been issued to all Principal Chief Commissioner of Customs and Chief Commissioner of Customs. The Letter has not been issued to Respondent No.2, i.e. the Chief Commissioner of Customs. This is contrary to Respondents' stand in their Affidavit in Reply, wherein they have stated that the Chairman, CBIC has issued mandatory directions to all Commissioners to issue Trade notice / Public notices and to place the same before the Board. (iii) In any event the Letter dated 13.01.2020, cannot be considered to be a delegation of CBIC's powers under Section 152 since it does not follow the procedure laid down in the said provision (as statcd above). Furthermore, the Letter dated 13.01.2020, is issued only by the Chairman, CBIC and not by CBIC as required under Section 151A. 29. It is submitted that the Letter dated 13.01.2023, merely considers representations from members of EXIM Trade and directs initiation of action. It is submitted that neither the interest of shipping lines nor the nature of their transactions, or the impact on their contractual relations with importers/exporters have been co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but a colourable exercise of power. 36. The case was heard on 26.07.2023 and adjourned to 03.08.2023 under the caption 'for orders' to facilitate the respondents to file a copy of any order issued by the Central Board of Indirect Taxes and Customs based on which the impugned Public Notices are purported to have been issued. 37. On 03.08.2023, the learned counsel for the respondents filed a copy of a letter dated 13.01.2020 signed by Dr.John Joseph, Chairman of Central Board of Indirect Taxes & Customs, New Delhi [Board for short]. It reads as under:- Kindly refer to the enclosed representations. It appears that shipping lines are charging excessive charges as terminal handling charges than what the terminals are charging for clearance of containers. Currently, the Terminal Handling Charges are collected by the shipping lines. 2. This should immediately be changed to facilitate 'Ease of Doing Business'. This will actually save almost Rs.5000/- to 10,000/- per container as can be seen from the complaints received in my office. Since India is having a traffic of almost one crore containers, this will be a substantial gain to the industry are trade. As an immedia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otices. 44. It is further submitted that the CBIC vide D.O.No.CH(IC)/02/2020 dated 13.01.2020 has directed that in order to facilitate 'Ease of Doing Business' Trade Notice/Public Notice may be issued to see that DPD (Direct Port Delivery) clients and AEO (Authorized Economic Operators) clients are permitted to pay terminal charges directly to the port terminals. 45. This would show that an option was extended to specified class of importers/Exporters and it is left to the choice of the exporters and the port terminals of avail of this facility. The impugned Public Notice clearly sets out that they are "requested" which means it was never intended to be a compulsory measure. 46. It is submitted that a reading of Sec. 151-A of the Customs Act, 1962 would show that the Board is empowered to issue such orders, instructions and directions for implementation of provisions of this Act and the instructions issued by the Chairman, CBIC is one such instruction and the same does not require any delegation under Sec. 152 and therefore the public notices issued are legal and it is not as if the 2nd Respondent has acted without any such powers or beyond the scope of its powers. NO R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ver, the impugned public notices do not attempt to regulate the conditions, documents or charges imposed by the shipping lines. 52. The impugned public notice merely attempts to facilitates trade in pursuance of the government policy of ease of doing business by aiding the EXIM members by extending an option to exporters who are willing to directly pay the terminal charges. Therefore, the public notices do not have any adverse effects on the rights and interests of the shipping lines. IMPUGNED PUBLIC NOTICES ARE NOT IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION OF INDIA : - 53. The impugned public notices are based on the instructions of the Board vide its letter dated 13.01.2020. The Hon'ble Supreme Court has laid down the principles the Court can interfere in policy decisions and as to how law relating to economic activities should be viewed with greater latitude. 54. It is therefore submitted that the Court can interfere only if the policy decision is patently arbitrary, discriminatory or malafide and based on the above the Court has to deal with contentions of Petitioners. It is further submitted that the petitioners have not alleged any of the above principles such a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 143AA to the Custom Act, 1962 reads as follows:- Section 143AA.-Power to simplify or provide different procedure, etc., to facilitate trade. - Notwithstanding anything contained in any other provision of this Act, the Board may, for the purposes of facilitation of trade, take such measures or prescribe separate procedure or documentation for a class of importers or exporters or for categories of goods or on the basis of the modes of transport of goods, in order to,- a) maintain transparency in the import and export documentation; or b) expedite clearance or release of goods entered for import or export; or c) reduce the transaction cost of clearance of importing or exporting goods; or d) maintain balance between customs control and facilitation of legitimate trade.". 61. Section 143AA to the Customs Act, 1962 was inserted into the Customs Act, 1962 with effect from 1.4.2018 vide Section 97 of the Finance Act, 2018. The amendment to the Customs Act, 1962 saw amendments to the provisions to the provisions of the Central Boards of Revenue Act, 1963. 62. Clause 95 of the Finance Bill, 2018 sets out the reasons for insertion of Section 143AA to the Customs Act, 1962. C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act, 1944. Section 151A and 152 of the Customs Act, 1962 reads as under:- Section 151A Section 152 151-A. Instructions to officers of customs. The Board may, if it considers it necessary or expedient so to do for the purpose of uniformity in the classification of goods or with respect to the levy of duty thereon or for the implementation of any other provisions of this Act or of any other law for the time being in force, insofar as they relate to any prohibition, restriction or procedure for import or export of goods, issue such orders, instructions and directions to officers of customs as it may deem fit and such officers of customs and all other persons employed in the execution of this Act shall observe and follow such orders, instructions and directions of the Board: Provided that no such order, instructions or directions shall be issued- (a) so as to require any such officer of customs to make a particular assessment or to dispose of a particular case in a particular manner; or (b) so as to interfere with the discretion of the Principal Commissioner of Customs or Commissioner of Customs (Appeals) in the exercise of his appellate functions. 152. Delegation of powers. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue Act, 1963, every Rule made under it shall be laid as soon as may be after it is made before each House of Parliament while it is in session for a total period of thirty days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be, so however, that any modification or annulment shall be without prejudice to the validity of anything previously done under that rule. 72. Section 4(1) and 4(2) of the Central Board of Revenue Act, 1963 reads as under:- Section 4(1) Section 4(2) (1) The Central Government may make rules for the purpose of regulating the transaction of business by each Board and every order made or act done in accordance with such rules shall be deemed to be the order or act, as the case may be, of the Board. (2) Every rule made under this section shall be laid as soon as may be after it is made before each House of Parliament while it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mat. 79. Letter dated 13.01.2020 bearing reference:D.O.No.CH(IC)/02/2020 does not seek to delegate the power under Section 143 AA of the Customs Act, 1962. Letter dated 13.01.2020 bearing reference: D.O.No.CH(IC)/02/2020 seeks to nudge the Commissionerate's to implement Section 143AA of the Customs Act, 1962. 80. The above communication dated 13.02.2020 has been drafted by the Chairman of the Board, content of which has been extracted above indicates that it has been sent to the Principal Chief Commissioner of Customs, Mumbai Zone II, Nava Shava, District Raigad, Maharashtra with a copy marked to the all the Principal Chief Commissioners of Customs all over India for similar action. 81. The impugned Public Notices have been issued in public interest. The impugned Public Notices merely extends the facility/option to importers and exporters. They are not bound to avail the said option. 82. The impugned Public Notices has been issued in view of the Government's avowed policy decision for facilitating "Ease of Doing Business" in the country. The impugned Public Notices motivated with the object to implement Section 143AA of the Customs Act, 1962. 83. It is not as if the impugn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 62 vide section 97 of the Finance Act, 2018 is itself struck down as ultra vires either the Constitution or any of the other provisions of the Customs Act, 1962, the impugned public notices cannot be struck down on the grounds raised in these writ petitions even if there was a minor infraction of the procedure under the Government of India (Allocation of Business) Rules, 1961. In my view, there are no merits in these Writ Petitions. 93. That apart, having filed W.P.(C).No.7435 of 2020 (D) before the High Court of Kerala on the same cause of action and having failed and having filed W.A.No.333 of 2021 before the Hon'ble Division Bench of the Kerala High Court, these Writ Petitions have to fail. The filing of Writ Petitions before this Hon'ble High Court and the High Court of Kerala on the very same cause of action would amount to forum shopping. It is not proper. Therefore, on the ground of shopping also these batch of Writ Petitions are liable to be dismissed as the challenge before both the High Courts are very same. 94. These writ petitions have to therefore fail and are liable to be dismissed. Therefore, these writ petitions are dismissed. No costs. Consequently, the conne ..... X X X X Extracts X X X X X X X X Extracts X X X X
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