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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 ..... THAT:- A bare reading of the Section 143 AA of the Customs Act, 1962 would indicate that the Board may take such measures or prescribe separate procedures for fulfilling the conditions prescribed u/s 143AA of the Customs Act, 1962. The letter dated 13.01.2020 bearing reference: D.O.No.CH(IC)/02/2020 as set out that above indicates that decision of the Board to implement the object of Section 143AA of the Customs Act, 1962. To implement Section 143AA of the Customs Act, 1962 delegation u/s 152 of the Customs Act, 1962 is not required, although the Central Government can also to delegate the power to officers u/s 152 of the Customs Act, 1962. Section 143AA of the Customs Act, 1962 is an independent provision and confers independent power. Any decision of the Board has to be in consonance with the Rules under Section 4(1) of the Central Board of Revenue Act,1963. As per Section 4(1) of the Central Board of Revenue Act,1963, the Central Government has to make Rules for the purpose of regulating the business of the Board and every order made or act done in accordance with the such rules by the Board shall be deemed to be order or act, as the case may be of the Board. Therefore, there i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing 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. These writ petitions have to therefore fail and are liable to be dismissed. Therefore, these writ petitions are dismissed. - And W.M.P.Nos.5979, 5980, 5981, 5986, 5987, 5988, 5989, 5990, 5991, 5992, 5993, 5995, 6348, 6349, 6353, 6352, 6340, 6339, 6342 6344 of 2020 and W.M.P(MD).Nos.4859, 4860, 4861, 4108, 4106, 4105, 4118, 4119, 4123, 4883, 4884 4887 of 2020 Honourable Mr. Justice C. Saravanan For the Petitioner : Mr.Vijay Narayan Senior Counsel for Mr.K.Harishankar Assisted by Mr.Prathamesh Kumar along with Mr.Shiv Iyer, Ms.Aditi Maheswari and Ms.Ankita Sen For the RR 1 2 : Mr.Rajnish Pathiyil Senior Standing Counsel For the R3 : Dr.D.Simon COMMON ORDER By this common order, all these writ petitions are being disposed off. 2. These petitioners have challenged the impugned communication issued by the Commissioners of Customs from different Commissionerate s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Handling Charges etc., which are at variance with what the Shipping Lines have paid to the port terminals. This results in lack of transparency in collection of these charges. 3. In order to bring transparency, augment 'Ease of Doing Business' and to reduce the logistics costs, it is decided that the importers having AEO status availing DPD facility for containerized cargo may be allowed the facility of paying terminal handling charges and the other charges of the port terminal directly to the terminal operators instead of paying through the Shipping Lines. Therefore, all such eligible importers who have already opened P.D account with the terminal operators may pay the terminal charges directly to the respective terminals. The eligible importers who do not have P.D accounts may open P.D accounts with the concerned ports/terminals and pay terminal charges directly to the concerned ports/terminals. Ports/terminals are also requested to raise invoices for terminal charges directly to the eligible and willing importers. 4. Difficulties faced, if any, may be brought immediately to the notice of the undersigned at [email protected] 7. A similar case was filed before the Keral ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. It was held that all the charges have already been included in the original bill of lading duly discharged payment of terminal and other charges. The Bombay High Court after considering the argument did not accept the contention by holding that the facility notices were issued with the object of facilitating and enabling the importer to have an efficient movement of container for early clearing of the goods. At the best, it can be a dispute arising out of the contract or money between the shipping line and the importer or the exporter. For the reasons aforementioned, I do not find any justification warranting any interference under Article 226 of the Constitution of India, to bring the case under the realm of judicial review. The writ petition is accordingly dismissed. 10. A perusal of the above would indicate that these Petitioners except the petitioners in W.P.(MD). Nos. 5554 of 2020 5575 of 2020 had invoked the extraordinary jurisdiction of the Hon'ble High Court of Kerala as well as this Hon'ble High Court 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 bl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for any one of the carriage service. 17. The Impugned Public Notice of the Commissioner of Customs is challenged primarily on the ground that they have been issued contrary to the provisions of the Customs Act, 1962. Specifically, it is submitted that the manner in which power has been exercised by the Commissioners of different Commissionerate is contrary to the letter and spirit of Section 143AA of the Customs Act, 1962. 18. It is submitted that the Impugned Public Notices do not refer to any order of the Board as is contemplated under Section 143AA of the Customs Act, 1962. It is submitted that even otherwise there is also no delegation of power in terms of Section 152 of the Customs Act, 1962 by the Central Government to any of the Commissioners. 19. Specifically, it is submitted that even if there was a delegation, there was delegation only to the Principle Chief Commissioner of Customs and to / or Chief Commissioner of Customs who alone are empowered in this behalf by the Central Government, whereas the 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 152 of the Customs Act lays down a particular procedure for delegation of CBIC's powers, Section 151A cannot be read in a manner to render the said procedure (under Section 152) otiose. Section 151A does not permit delegation of CBIC's powers. 28. As far as the above communication dated 13.01.2020 of the Chairman of the CBIC is concerned, it is submitted that the said communication does not aid the validity of the Impugned Public Notice for the following reasons:- (i) The Letter issued by the Chairman, CBIC neither appears to be a decision taken by CBIC, nor does it refer to any decision taken by CBIC (as sought to be argued by Respondent Nos. 1 and 2). The Letter is a correspondence issued by the Chairman (in his personal capacity) and does not qualify as measure taken by CBIC under Section 143AA of the Customs Act (or otherwise). The Letter only appears to forward representations against shipping lines from members of EXIM trade, which is akin to forwarding grievance of members 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r submitted that the Impugned Public Notice ought to be in conformity with the powers contemplated under the Customs Act. Pertinently, even a delegated legislation or a subordinate legislation has to be in conformity with the parent Act and cannot travel beyond its scope and authority. The Impugned Public Notice which is an administrative direction, must, most certainly be in conformity with the powers under the Customs Act. The Impugned Public Notice cannot travel beyond the Customs Act and contemplate creation of rights in favour of Respondent No.2 which the statute itself does not contemplate. 34. It is submitted that pursuant to the Impugned Public Notices, the Special Secretary to the Logistics, Department of Commerce has also issued an E-Mail communication to various departments including the Commissioner to comply with the requirement of the above mentioned Public Notices in the respective Commissionerate s. 35. It is submitted that the impugned Public Notices is nothing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on cost of import and export activity. 42. It is therefore submitted the CIBC is empowered to take measures or prescribe procedures 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 reduce the transaction cost of clearance of importing or exporting goods and exercising such powers the Board had issued the instructions dated 13.01.2020 (which has been issued thru the Chaiman, CBIC) and based on the said instructions the impugned public notices have been issued. 43. Based on the above, in order to implement the objective of Sec. 143AA of the Customs Act, 1962, the Chairman of the Board had issued such instructions. The letter dated 13.01.2020 outlines the objectives of Sec. 143 AA of the Customs Act, 1962 which is to take measures or prescribe procedures in order to reduce transaction cost of import and export activity by issuing directions/instructions to the field to issue Public Notices. 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 (Di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ease of doing business. REASON FOR ISSUANCE OF THE LETTER DATED 13.01.2020 AND THE SUBSEQUENT IMPUGNED PUBLIC NOTICES:- 50. It was found that the shipping lines were charging excessive charges as terminal handling charges than what was being charged for clearance of the containers. These costs impacted the overall cost of import/export and inputs and the same would in turn affect the import- export trade as cost competitiveness would then be at risk. Therefore, the impugned public notices are merely advisory in nature for AEO and DPD clients who want to avail the facility and therefore the rights of the shipping lines are in no way affected by the impugned public notices. 51. It is also pertinent to mention that the impugned public notice merely provides an option to the exporter to pay the terminal charges directly to the port terminals. Therefore, it is not as if the rights of the shipping lines have not been taken into consideration. Moreover, 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xporter to pay the Terminal Handling Charges directly to the Port Terminals. It does not make it compulsory or mandatory for any party to do so. Therefore, the exporters are free to act as per their contractual obligations and impugned public notices in no way interfere in the private contract between the Shipping Lines and the exporter/importer. 59. I have considered the arguments advanced by the learned Senior Counsel for the petitions and the learned counsel for the respondents. I have also perused the provisions of the Customs Act, 1962 and the decisions cited by the learned Senior Counsel for the petitioners. 60. Section 143AA was inserted into the Customs Act, 1962 with a view to bring transparency in the documentation and the procedures involved in the import and export of goods and to reduce the cost involved in the clearance of import and export of goods. Section 143AA of the Customs Act, 1962 is a trade facilitation. Section 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 faci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o implement Section 143AA of the Customs Act, 1962, there is no necessity for issuance of any circular. To implement the object of the Section 143AA of the Customs Act, 1962, neither the machinery under Section 151 A of the Customs Act, 1962 nor under Section 152 of the Customs Act, 1962 is required. 66. To implement Section 143AA of the Customs Act, 1962 delegation under Section 152 of the Customs Act, 1962 is not required, although the Central Government can also to delegate the power to officers under Sec. 152 of the Customs Act, 1962. Section 143AA of the Customs Act, 1962 is an independent provision and confers independent power. 67. Under Section 151-A of the Customs Act, 1962 Board also has power to issue instructions to its officers of the Customs under Section 151-A of the Customs Act, 1962. It is similar to the power vested with the Board under Section 37 A of the Central Excise 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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. 69. Any decision of the Board has to be in consonance with the Rules under Section 4(1) of the Central Board of Revenue Act,1963. As per Section 4(1) of the Central Board of Revenue Act,1963, the Central Government has to make Rules for the purpose of regulating the business of the Board and every order made or act done in accordance with the such rules by the Board shall be deemed to be order or act, as the case may be of the Board. 70. Therefore, there is no requirement for delegation of powers as the Commissioners are merely carrying out the instructions of the Board to implement the policy decision of 'ease of doing business. 71. As per Section 4(2) of the Central Board of Revenue 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the decision of the Board vide communication dated 13.02.2020 bearing reference: D.O.No.CH(IC)/02/2020 signed by the Chairman of the Central Board of Indirect Taxes and Customs, Ministry of Finance, Department of Revenue. 77. The above communication dated 13.01.2020 bearing reference: D.O.No.CH(IC)/02/2020 is signed by the Chairman to the Principal Commissioner of Customs, Mumbai Zone-II, pursuant to which the Impugned Public Notices have been issued. 78. The above communication dated 13.01.2020 bearing reference: D.O.No.CH(IC)/02/2020 have been sent to Principal Chief Commissioners, Mumbai, Zone-II / Chief Commissioners of Customs and to all Principal Chief Commissioners and Commissioners of Customs. Said communication dated 13.01.2020 bearing reference: D.O.No.CH(IC)/02/2020 is a response of the Chairman of the Board in a demi official format. 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 da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 020 for any violation of Government of India (Allocation of Business) Rules, 1961 and any other Rule framed under Section 4(1) of the Central Board of Revenue Act, 1963. 90. However, it has not been demonstrated that the above communication dated 13.01.2020 bearing reference D.O.No.CH(IC)/02/2020 of Chairman of the Board was issued in violation of the Government of India (Allocation of Business) Rules, 1961 or any other Rule framed under Section 4(1) of the Central Board of Revenue Act, 1963. 91. The decision of the Board has been implemented uniformly by All the Commissionrates in unison. The purposes for which the impugned public notices have been issued are in line with the object of section 143AA of the Customs Act, 1962. Therefore, the impugned Public Notices is / are not arbitrary. 92. Unless, the Amendment to Customs Act, 1962 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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