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TMI Blog2024 (8) TMI 31X X X X Extracts X X X X X X X X Extracts X X X X ..... s? Legal Framework - HELD THAT:- The demurrage/detention charges are payable only when the goods are not cleared either voluntarily by the importer or because of action or inaction of the Customs authorities in completion of the adjudication proceedings or in taking a decision on provisional release. It would be apropos to mention here that the question of payment of demurrage/detention charges arises only if the goods are not cleared within the free period. An objection has been raised by the CCSP stating that they are only rental/storage charges and not demurrage/detention charges. This objection will not hold water as such narrow approach cannot be given to the words demurrage /detention charges as they are charges payable by the owner/Importer of the goods for not having cleared the goods within the agreed free time. Though the word detention has not been defined under the Act, it is held that it is to be treated as synonymous with the seizure of the goods which takes place when the same is directed not to be cleared. It would be relevant to refer to Sections 158 and 170 of the Contract Act which deal with repayment by bailor and bailees particular lien, wherein the word remune ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guilty of any violation are entitled to waiver, if a certificate is issued by the authorities. That apart, it is held that the CCSP are obliged to perform their duties in accordance with the provisions of the Customs Act and the Regulations, namely the HCCA Regulations, and SCMT Regulations. The Regulations not only insist on obtaining appropriate approval under Section 8 of the Act but also require declarations and documents to be executed by the CCSP failing which they can neither operate in the customs area nor handle imported goods. While acting in accordance with the directions given by the Customs authorities, they are performing their statutory obligation. Therefore, what is also to be considered in the present case is the circumstances and the object for which the Regulations have been brought into force. The findings of the learned Judge in the orders dated 22.06.2021 01.07.2021 that the rights of the parties should be determined by the civil court, cannot be agreed upon. The writ petitions ought not to have been rejected on that ground and as the directions sought are only to enforce a statutory right, a writ of mandamus is entertainable. CCSP's right to be heard - w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e parties to approach the authority concerned, who shall consider the same in accordance with law. Noncompliance of the waiver certificates by the CCSPs and the authorised carriers - HELD THAT:- The provisions of the Customs Act, the 2009 HCCA Regulations and the 2018 SCMT Regulations, contain various provisions for cancellation of licence, suspension and imposition of penalty. When the waiver certificate is issued, it is the obligation on the part of the CCSP to honour the same and waive the charges. Further, the Act and the provisions do not carry any provision for payment of interest. Therefore, the only deterrent for non-compliance can be initiation of appropriate action against the CCSPs. Therefore, in cases, where the certificates are issued after conclusion of the adjudication proceedings in favour of the importer/exporter and if not complied, appropriate action may be initiated by the department by following the due process of law. Application disposed off. - W.P. Nos. 1885, 1890, 4284, 4285, 6603, 20229, 20236, 25548, 29948 and 32579 of 2019, W.P. Nos. 5896, 8497, 8498, 10131, 10133, 10512, 10515, 14257, 15469, 15612, 15619, 15631, 16323, 16403, 16772, 16817, 16868, 1696 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Freight Station Pvt. Ltd., M/s. T.S.Lines (India) Pvt. Ltd., M/s. Balmer Lawrie Company Limited, Allcargo Logistics Limited, M/s. Safmarine India Pvt. Ltd., Hyundai Merchant Marine India Pvt. Ltd., APL India Pvt. Ltd., Calyx Container Terminal Pvt. Ltd., ZIM Line, Maersk Line India Pvt. Ltd., Parekh Marie, CMA CM SA, C/O. CCAI, Babaji Shivram Clearing Carriers Pvt. Ltd., Adani Logistics Ltd., APL CO.PTE Ltd, C/o. CMA CGM Agencies (India) Pvt Ltd., Aissa Marine Private Limited, ZIMINTEGRATED SHIPPING Services (India) Pvt.Ltd., RCL Agencies East India Pvt. Ltd., Wan Hai Line, Sical Logistics Ltd., COSCO Shipping Lines (INDIA) Pvt. Ltd., The Manager, M/s. Sanco, CFS, The Manager, M/s. Fair Freight Lines Pvt.Ltd. And The Chief Commissioner of Customs, The Additional Commissioner of Customs, The Deputy Commissioner of Customs Versus M/s. Sherisha Technologies P Ltd., M/s. Continental Warehousing Corporation, M/s. Sanco Trans Ltd. Hon'ble Mr. Justice R. Mahadevan, Acting Chief Justice And Hon'ble Mr. Justice Mohammed Shaffiq For the Appellant : Mr.P.Giridharan, Mr.Dominic S. David, Mr.S.Santhosh, Mr.S.Dhayaleswaran, Mr.Arvind P. Datar Senior Counsel For Mr.Joseph Prabakar, Mr.B.S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. However, the waiver of detention certificate issued by the customs authorities is not being honoured by the CFS and shipping lines/steamer agents. 4. The steamer agents (involved in W.P. Nos. 4284, 4285, 25548, 29948 and 32579 of 2019) challenged the validity of the waiver letters issued by the Customs authorities to the importers. According to them, Rule 6(1)(l) only applies to waiver of demurrage/ground rent charges and does not cover detention charges. However, in the orders impugned in these writ petitions, the Customs authorities waived the detention period. They further stated that when a request to waive the detention charges was made by the importers, the Customs authorities should have heard the steamer agents, after issuing notice to them. However, without doing so, the waiver of detention charges was granted. The steamer agents also submitted that the representation made by the importers seeking waiver of detention charges is, at best, a grievance under the terms of the Bill of Lading, which is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach the Directorate of Revenue Intelligence for waiver of detention charges. Finding no response on the same, the petitioner has preferred this writ petition seeking a direction to the authorities to issue detention-cum- demurrage waiver certificate. 7. In W.P. Nos. 20236 and 20229 of 2019, the importers' goods were confiscated by the Customs authorities. Upon payment of penalties, the goods were subsequently released. Thereafter, the importers requested waiver of the detention charges, which was granted by the Customs authorities. However, they sought waiver of detention charges from the date of filing of the bill of entry till the date of actual clearance of the goods. The said request was rejected, which compelled the petitioners to file these writ petitions. 8. In W.P. No. 5896 of 2020, the goods were investigated by the Special Intelligence and Investigation Branch (in short, the SIIB ). The department claimed that the goods are subject to Anti-Dumping Duty (ADD). After filing of W.P. No. 31796 of 2017 by the importer, the goods were released on furnishing bank guarantee. Thereafter, the importer requested waiver of demurrage and detention charges, which was not considered ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 0, 16403 of 2020, 16772 of 2020, 16817 of 2020, 16868 of 2020, 16968 of 2020, 16979 of 2020, 17087 of 2020, 17141 of 2020, 17159 of 2020, 17250 of 2020, 17148 of 2020, 17196 of 2020, 17466 of 2020, 17529 of 2020, 17705 of 2020, 17715 of 2020, 17733 of 2020, 17736 of 2020, 17738 of 2020, 17769 of 2020, 17770 of 2020, 17773 of 2020, 17921 of 2020, 18263 of 2020, 352 of 2021, 461 of 2021, 750 of 2021, 751 of 2021 and 1328 of 2021 stated that they are engaged in various spheres of businesses including the generation of electricity through the means of renewable sources like solar energy. The goods of the importers were seized by the SIIB and were subsequently released provisionally under Section 110 A of Customs Act, 1962. Investigation was completed and the Customs authorities accepted the bills of entry filed by the importers and detention certificates were also issued for waiver of demurrage and detention charges. However, the CFS and Shipping Lines in respective cases declined to waive these charges. Therefore, the importers made representations to the CFS and Shipping Lines, requesting to refund of the amount collected in terms of the HCCA Regulations. However, nothing moved, whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... emurrage charges. The CFS and Shipping Lines have also filed writ petitions challenging the waiver of detention charges granted by the Customs authorities. In these writ petitions, several orders came to be passed by different learned Judges. While some learned Judges granted the relief of refund of demurrage charges, some other learned Judges declined to do so. All the matters are now being taken up in the appeals. 16. The appellants/importers are engaged in various spheres of businesses, including the generation of electricity through solar energy. Their goods were detained by the SIIB for investigation and subsequently released provisionally under Section 110A of the Customs Act. According to the appellants, in terms of Rule 6(1)(l) of the HCCA Regulations, rent or demurrage charges should not be charged if the goods are detained by the Customs Department. Hence, the appellants applied for a certificate from the Department for the period during which the goods were detained and for the period the appellants had paid rent and demurrage charges. The Customs authorities had also issued a certificate for waiver of detention/demurrage charges from the date of filing the Bill of Entry ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Areas Regulations, 2009 and all further adjudications or disputes with the Customs Cargo Service Provider is to be undertaken by approaching the competent forum and certainly, not a writ proceedings. 27. The direction sought for in the writ petitions to direct the second respondent, to direct the third respondent to make refund is coined with an idea to overcome the maintainability of writ petitions. Thus, the prayer as such cannot be granted, in view of the fact that the second respondent has already issued a Detention Certificate, which is to be construed as eligible for the purpose of claiming refund from the third respondent. This apart, the third respondents are Private party and no relief can ordinarily be entertained in a writ proceedings. Undoubtedly, the Apex Court and the High Court in certain writ petitions, issue orders against the Private parties only in certain circumstances, where public interest and public duties are involved. 28. All the writ petitions are maintainable. High Courts will not dismiss any writ petition as not maintainable. However, the entertainability of a writ petition with reference to the facts and the principles of law is to be considered for gr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o refund the charges paid. The learned Judge vide order dated 08.08.2017, held that the importers are entitled to a waiver of rent/demurrage charges till the date of clearance of the goods detained by the Customs authorities. The relevant portion of the said order is extracted hereunder, for better appreciation: 10. With regard to the Container Terminal, the third respondent in W.P. No. 6453 of 2017, namely, M/s.K.Steamship Agencies, it appears that they have given only 25% waiver. This action of the third respondent is contrary to the statutory regulation namely, Regulation No.6(1)(l). The third respondent M/s.K.Steamship Agencies Pvt., Ltd.,having not questioned the order passed by the second respondent, dated 28.12.2016, are bound by the order and they have to proceed in letter and spirit as per the said order. The question of now interpreting the order are extending partial relief is not permissible as the Regulation uses the expression 'shall not charge any rent or demurrage'. This, mandates that the third respondent is prohibited from charging any rent or demurrage during the period of detention. This having been certified by the second respondent, there is no escape ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sputed facts can never be adjudicated in a writ proceedings under Article 226 of the Constitution of India. Such disputed issues are to be adjudicated with reference to the original documents and evidences which all are to be scrutinized by the authorities competent and by the parties concerned. This apart, the terms and conditions of the contract, if any violations there on, are to be adjudicated by conducting a trial before the appropriate forum and such an exercise is impermissible in writ proceedings. The High Court cannot conduct a rowing enquiry based on the affidavits filed by the parties in a Writ Petition. This being the principles to be followed, the extended prayer sought for by the petitioner by filing an amendment petition deserves no merit consideration and further relief, if any requires, the petitioner has to approach the competent forum for adjudication. However, the fact remains that the original relief sought for in the Writ Petition had been granted in favour of the writ petitioner and 100% goods were released and the detention certificate was also issued. This being the factum, the petitioner cannot continue the Writ Petition by filing amendment petition in ord ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not by itself confer an enforceable right to claim refund or release of goods, without adjudication of any disputes between the private service provider and importer regarding contractual obligations. Having held so, the learned Judge dismissed the writ petition, however, granting liberty to pursue other remedies available before appropriate forums. The relevant portion of the said order is usefully extracted below:- 18. Under these circumstances, this Court formed an opinion that the Detention certificate is nothing but affirmation of the statutory provisions contemplated, more specifically, with reference to Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. Thus, such a certificate undoubtedly provides a right to the holder of the certificate to claim the relief of release of imported goods by the Service Provider or refund as the case may be. However, there is no consideration in any of these judgments submitted by the learned counsel for the petitioner that in the event of existence of a dispute between the Service Provider and the importer or exporter and the status of certificate of detention. Pertinently, those areas are not considered in the ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of goods and a detention/demurrage waiver certificate. However, the service provider did not fully honuor it and compelled the appellant to pay Rs. 20.57 lakhs as charges. Therefore, the appellant filed another writ petition in W.P. No. 26838 of 2018, seeking refund, which was dismissed by the learned Judge with the following observations:- 22. The undertaking clause in Regulation 5 (5) is to ensure that the service providers implement the provisions of the Act and the Rules as well as the consequent orders issued by the Authorities. However, this Court has held in the aforementioned paragraphs that Detention Certificate is to be construed as Eligibility Certificate for the purpose of claiming refund and the refund is to be granted after resolving the disputes, if any exist between the service providers and importers or exporters. The contractual relationship between the service providers, who is a private person and the petitioner cannot be resolved under writ jurisdiction by the High Court. Thus, based on the Detention Certificate issued by the Customs Authorities, the petitioner has to adjudicate the same before the Competent Forum or claiming recovery of refund. 23. This bei ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s-declaration of the goods as well as the quantity had paid the revised customs duty, penalty, redemption charges etc., to the extent of Rs. 65 lakhs, whereas the original self-assessed duty of the goods imported on the part of the petitioner is only Rs. 9 lakhs and odd. 65. Because of this attitude of the petitioner, there could be no sympathy on the part of the petitioner from any side, apart from the legal position discussed above. 66. Though the customs authorities invoking the power under Section 49 of the Act, has permitted the petitioner to avail the facility of warehousing the goods by releasing the container under Section 49 of the Customs Act, to avoid demurrage / detention charges, that was subject to fulfilment of the prescribed conditions. 67. Assuming that, under Section 49 of the Act, when such a permission was given and an advice note on the same date, since has been given by the customs authorities to both fourth and fifth respondents under 2009 as well as 2018 Regulations respectively, all these benefits can be extended to the petitioner as per the customs authorities communication, dated 13.01.2022 and 17.01.2022 only for the period up to 13.01.2022. 68. Beyond w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... issued a letter on 17.01.2022, directing the appellant-terminal to waive detention charges from 08.11.2021 to 13.01.2022, which is against Regulation 10(1) of the Sea Cargo Manifest and Transhipment Regulations 2018 and does not bind the appellant. Though detention waiver was offered, the importer did not take delivery after paying balance charges but filed a writ petition seeking release without charges, relying on the detention certificate. However, the learned Judge granted waiver only until 13.01.2022, overlooking the misdeclaration by the importer and the fact that waiver beyond 60 days is not permitted under Regulations. 23. The importer filed the writ petitions in W.P. Nos. 23755 and 23756 of 2017, seeking a declaration declaring the impugned communication dated 23.12.2016 as illegal, without jurisdiction, against the provisions of the Act, and null and void and a mandamus directing the third respondent to issue the Detention Certificate and other appropriate directions to enable the importer to comply with the Order-in-Original dated 05.01.2016 by re-exporting the subject consignment. The learned Judge held that the importer had attempted to illegally import restricted R22 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 fifth respondents as expeditiously as possible, preferably, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sundaresan, Additional Solicitor General 24.5. Reply submissions of importers 24.5.1. Mr.Arvind Datar 24.5.2. Mr.B.Sathish Sundar 24.5.3. Mr.V.P.Raman 24.1. Submissions of importers 24.1.1.(a) Mr.Arvind P. Datar, learned senior counsel representing Mr.Joseph Prabhakar, learned counsel for the importers in respective writ petitions and writ appeals would argue that Container Freight Stations (CFSs) and shipping lines should not impose detention charges on the importers. He highlights Regulation 6 (1) of the HCCA Regulations, particularly Clause (l), which prohibits Customs Cargo Service Providers (CCSPs) viz., CFS and shipping lines from charging detention charges. He also asserts that both CFS and Shipping Lines fall under the scope of CCSPs as per Regulation 2(1)(b), involving various logistical functions within the Customs Area. Public Notices bearing Nos. 158/2016, 169/2016, and 12/2019-20 explicitly include Shipping Lines/Freight Forwarders/Carriers as CCSPs, making them subject to the Regulations. Consequently, they cannot claim exemption from their responsibilities in the Customs Area, and their charges are considered non-statutory and purely contractual. Adding further, he s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t these sections also do not apply inasmuch as the right of the CFS/shipping lines as bailee is restricted by mandate under the Regulations. Once the CFS/shipping lines act as a CCSP, they are obligated to follow the mandate under the Regulations which would prevail over their right as bailee. It is also submitted that Section 1 of the Bills of Lading Act extends the contractual relationship to the consignee. However, the source of charge under the contractual document between the parties remains the same. (d) The learned senior counsel also submitted that the detention certificate issued by the Customs authorities directing Customs Cargo Service Providers (CCSPs) not to charge rent, demurrage, etc., is a statutory decision taken under the HCCA Regulations and the Sea Cargo Manifest and Transhipment Regulations (SCMTR), 2018, which are subordinate legislations under Sections 141(2) and 157(2)(h) of the Customs Act, 1962. He would further submit that Regulations 2(b), 3, 5(5), 6(1)(l), and 6(1)(q) of the HCCA Regulations define CCSPs broadly to include steamer agents, freight forwarders, and custodians under Section 8 of the Customs Act, 1962. These regulations bind CCSPs to follow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner has approached this Court, by way of W.P. No. 22114 of 2017, seeking for release of the same product, which was imported vide Bill of Entry No.2696680, dated 02.08.2017 and detained vide Mahazar, dated 10.08.2017. The said Writ Petition was disposed of, by this Court, by order, dated 12.09.2017, directing the Authority to provisionally assess the Bill of Entry and release the goods and a direction was issued to the Commissioner of Customs to issue Detention Certificate. It appears that, though the Detention and Demurrage Certificate was issued, yet, the Steamer Agent did not honour the certificate and the petitioner has paid demurrages and container detention charges, without prejudice to their rights to contest the same in other legal proceedings. 16. It is not known, as to why, action was not initiated against the Steamer Agent for not complying with the order qua certificate passed/issued by the Customs Department, and therefore, this Court is inclined to observe that the Customs Department should also ensure that whether the Detention Certificate issued for waiver of the warehousing and demurrages has been complied with in letter and spirit and should not be reduc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... signed on 25.04.2018 give effect to the same and ensure that the consignment namely Used Dialysis Machine, which is subject matter of instant writ petition is given delivery to the writ petitioner without insisting on demurrage and detention charges even post 23.03.2018. The above direction shall be complied with by the respondents as expeditiously as possible and in any event, with a period of four(4) weeks from the date of receipt of a copy of this order. (ii) M/s.Vanathi Exports Private Ltd Vs. The Commissioner Of Customs (Exports) [2020(374) ELT 490 (Mad.)] 10. Regulation 2(1)(b) of the Handling of Cargo and Customs Areas Regulations, 2009 defines a CCSP as follows: Regulation 2. Definitions. (1) In these regulations, unless the context otherwise requires.- b) Customs Cargo Services provider means any person responsible for receipt, storage, delivery, dispatch or otherwise handling of imported goods and export goods and includes a custodian as referred to in Section 45 of the Act and persons as referred to in sub-section (2) of section 141 of the said Act;' 11. The third respondent disputes that they are not a CCSP, but are freight forwarders and delivery agents. The Bill o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be; 13. Thus, a combined reading of the Regulation 2(b) and 5(5) along with Regulation 6(1)(l) would qualify the third respondent to be a CCSP. 14. In similar situations, when statutory regulations came to be violated by a CCSP and the maintainability of a Writ Petition against the CCSP was questioned before this Court in Balaji Dekors' case (supra), this Court has held that the matter involved is not contractual but involves the implementation of the statutory regulation and therefore, the Writ Petition would be maintainable. The relevant portion of the order reads as follows:- 5. The third respondent M/s.K.Steamship Agencies have filed a counter affidavit, stating that totally four containers were involved of which the period of detention of two containers was 28.12.2016 to 07.01.2017 i.e., for 11 days and the amount being Rs. 1,86,622/- and in respect of the other two containers, the period of detention was 28.12.2016 to 13.01.2017, and the amount involived is Rs. 2,88,415/- and the third respondent has given 25% waiver and the amount required to be paid by the petitioner is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... this is unreasonable because after the order was passed on 28.12.2016, effective steps have been taken by the petitioner to clear the cargo and it has been done in the shortest possible time on 06.01.2017. Therefore, the third respondent should waive the rent or demurrage on the goods for the entire period i.e., from 02.12.2016 till it was cleared on 06.01.2017. 10. With regard to the Container Terminal, the third respondent in W.P. No. 6453 of 2017, namely, M/s.K.Steamship Agencies, it appears that they have given only 25% waiver. This action of the third respondent is contrary to the statutory regulation namely, Regulation No.6(1)(l). The third respondent M/s.K.Steamship Agencies Pvt., Ltd.,having not questioned the order passed by the second respondent, dated 28.12.2016, are bound by the order and they have to proceed in letter and spirit as per the said order. The question of now interpreting the order are extending partial relief is not permissible as the Regulation uses the expression shall not charge any rent or demurrage . This, mandates that the third respondent is prohibited from charging any rent or demurrage during the period of detention. This having been certified by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f process or movement or handling of imported or export goods and goods brought for transhipment; (d) demarcate separate areas for unloading of imported goods for their storage with respect to the category of importers, nature of goods, place of destination, mode of transportation or any other criterion as the Commissioner of Customs may specify having regard to the custody and handling of imported goods in a customs area; (e) demarcate separate areas for loading of export goods for their storage with respect to categories of exporters, nature of goods, examined and sealed containers or other criterion as the Commissioner of Customs may specify having regard to the custody and handling of export goods in a customs area; (f) not permit goods to be removed from the customs area, or otherwise dealt with, except under and in accordance with the permission in writing of the Superintendent of Customs or Appraiser; (g) not permit any export cargo to enter the customs area without a shipping bill or a bill of export having been filed with the Deputy Commissioner or Assistant Commissioner of Customs; (h) not permit any import cargo to enter the customs area or be unloaded therein without th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... authority struck to their stand that there was under valuation. Therefore, the challenging the notice issued by the customs authority, the importer filed W.P.(MD)No.6961 of 2012 and obtained an interim order in their favour. Even thereafter, the authority did not release the goods. Only after disposal of W.A.(MD)No.548 of 2012, the goods were ordered to be released in November, 2012. Thus, the goods could not released only for the reason that they were detained by the customs authority. Clause 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 states that the customs cargo services provider shall not charge any rent or demurrage on the goods detained by the customs authorities. Therefore, the importer cannot be fastened with any liability whatsoever. The statutory scheme is very clear. So long as the goods have been detained, the question of levying any rent on the importer will not arise. This of course is subject to some caveats that have been laid down in the various precedents. If the importer is at fault, then of course, the customs authority may refuse to issue certificate as sought for by him. But in the case on hand, I note that there is absolutely no fault ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orce, all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Principal Commissioner of Customs or Commissioner of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII which deals with goods in transit. 15.1. As per sub-section (2), the person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force, shall keep a record of such goods and send a copy thereof to the proper officer; shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer or in such manner as may be prescribed. 15.2. Sub-section (3) deals with pilferation of imported goods in a customs area with which we are not presently concerned. 16. Section 141 of the Customs Act says that conveyances and goods in a customs area are subject to control of officers of customs. As per sub-section (1), all the conveyances and goods in a customs area shall, for the purpose of enforcing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s Cargo Service Providers shall allow the goods on production of a certificate issued from the proper officer certifying such period of seizure or detention or confiscation without charging and collecting any rent or demurrage for such period. 20. It is also not disputed that the goods imported by the petitioner vide bill of entry No. 7540462 dated 07.08.2018 were detained by the proper officer of the customs department for the period from 14.08.2018 to 06.02.2019 which has been certified by the Superintendent of Customs in the prescribed format further mentioning that the certificate was issued as per public notice No. 26/2010 dated 02.03.2010. 21. Therefore, for the period from 14.08.2018 to 06.02.2019, respondent No. 1 is under a legal obligation not to charge any rent or demurrage on the goods of the petitioner or on the container in which the goods have been stored and kept under its custody. Following the certificate dated 31.01.2019, it was also under a legal obligation to release the goods kept under its custody on or before 06.02.2019 to enable the petitioner to re-export the goods. Failure to do so has not only caused prejudice to the petitioner but would also disentitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterest of justice; (D) Your Lordships may be pleased to grant such other and further relief as may be deemed fit and proper in the facts and circumstances of the case. 2. We have heard Mr.Jigar Patel, the learned counsel appearing for the writ-applicant, Mr.Hardik Modh, the learned counsel appearing for the respondent no.3 and Mr.Priyank Lodha, the learned standing counsel appearing for the respondent no.1. 3. The short point that falls for our consideration is, whether the customs cargo service provider (respondent no.3 herein) is entitled to 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. 4. The aforesaid issue is no longer res integra in view of a recent decision of the Bombay High Court in the case of Sahaj Impex vs. Balmer Lawrie Co. Ltd. and another (Writ Petition No.10492 of 2019 decided on 18th January 2021), wherein the Bombay High Court, from paragraph-15 onward, has observed as under : 15. Section 45 of the Customs Act under the heading 'clearance of imported goods' deals with restrictions on custody an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act. 18.1. Regulation 6 deals with responsibilities of Customs Cargo Service Provider. A large number of responsibilities to be discharged by Customs Cargo Service Provider are mentioned in Regulation 6. Relevant for the present case is the responsibility mentioned in clause (l) which says 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. 19. It is not in dispute that respondent No. 1 is a Customs Cargo Service Provider as defined in Regulation 2(1)(b) of the Regulations. Being so, it is under a legal obligation to discharge the responsibilities as mandated under Regulation 6, more particularly in clause (l) thereof which clearly says that a Customs Cargo Service Provider 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. This position has been c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me in terms of letter dated 28.11.2018 of the Deputy Commissioner of Customs, Special Investigation and Intelligence Branch. 5. Thus, the observations made by the Bombay High Court in paragraph-19 clinches the issue. The respondent no.3, as the customs cargo service provider as defined in regulation No.2(1)(b) of the Regulations, is not entitled in law to charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or any other authority as referred to above. 6. This position seems to have been further clarified by the Commissioner of Customs (Export) by way of a public notice No.26/2010 with the further clarification that the customs cargo service providers shall allow the goods on production of a certificate issued from the proper officer certifying such period of seizure or detention or confiscation without charging and collecting any rent or demurrage for such period. 7. On account of the contractual relationship if the respondent no.3 wants to recover any other dues from the writ- applicant, it is open for the respondent no.3 to approach the appropriate forum for obtaining appropriate relief. 8. In view of the aforesaid, this wri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... detained them under CTH 8501, leading to further investigation. Despite provisional release upon furnishing bank guarantee/bond, the importers were compelled to pay ground rent and detention/demurrage charges for the goods' release. Following a CBIC Circular in April 2018 clarifying the correct classification under CTH 8541, the importers sought waivers for the charges, supported by Detention Certificates from the Deputy Commissioner of Customs. Though the regulatory mandates and directions were given by the Customs Authorities, the CFS/Shipping Lines refused refunds. Thus, the learned senior counsel would submit that the importers filed complaints with the Customs authorities, but no action was taken. Subsequently, they filed writ petition bearing nos.15490, 16359, 17114 17433 of 2020 seeking compliance of the regulations and Detention Certificates. However, these writ petitions were dismissed by the learned Judge by the order impugned in W.A. Nos. 2175 of 2021, 2235 of 2021, 2230 of 2021 and 2250 of 2020. (h) The learned senior counsel emphasizes that the learned Judge erred in dismissing the writ petitions on the ground of disputed facts, ignoring the law laid down in Vanath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an order on 28.12.2016 that the custodian (third respondent) shall not charge rent or demurrage for goods under detention. Thus, the third respondent cannot interpret the said communication, as the Regulations clearly provide that the custodian cannot charge any rent or demurrage on the goods detained by the second respondent. However in the case of W.P. No. 6452 of 2017, which concerns, M/s. Calyx Container Terminals, goods in question have been removed on 06.01.2017. Therefore, a levy is sought to be made for the period from 28.12.2016 to 06.01.2017. In my considered view this is unreasonable because after the order was passed on 28.12.2016, effective steps have been taken by the petitioner to clear the cargo and it has been done in the shortest possible time on 06.01.2017. Therefore, the third respondent should waive the rent or demurrage on the goods for the entire period i.e., from 02.12.2016 till it was cleared on 06.01.2017. With regard to the Container Terminal, the third respondent in W.P. No. 6453 of 2017, namely, M/s. K. Steamship Agencies, it appears that they have given only 25% waiver. This action of the third respondent is contrary to the statutory regulation namel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conveyances and goods in a customs area shall, for the purpose of enforcing the provisions of the Customs Act, be subject to the control of officers of customs. Sub section (2) says that the imported or export goods may be received, stored, delivered, dispatched or otherwise handled in a customs area in such manner as may be prescribed and the responsibilities of persons engaged in the aforesaid activities shall be such as may be prescribed. 68. Before proceeding to the provision providing the power to make regulations, it may be noted that a conjoint reading of sections 45 and 141 of the Customs Act makes it clear that officers of customs have an overall control over the goods unloaded in a customs area or which are in custody of persons approved by the Principal Commissioner or Commissioner. However, as we shall see, such general power cannot be invoked by a customs officer to issue a detention cum demurrage certificate to a customs freight station or to a shipping line. 69. Section 157 of the Customs Act provides the general power to make regulations. In exercise of powers conferred by sub section (2) of section 141 read with section 157 of the Customs Act, Central Board of Exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal Commissioner or the Commissioner of Customs, for the purposes of section 45 of the Customs Act. Jurisdictional Commissioner of customs has been defined under Regulation 2(1)(j) to mean the Commissioner of Customs who has granted registration under Regulation 3. Regulation 2(2) clarifies that any reference to a Commissioner of Customs shall also include a reference to Principal Commissioner of Customs for the purposes of the 2018 Regulations. Regulation 3 deals with registration of a person required to deliver arrival manifest or departure manifest. Regulation 10 deals with responsibilities of the authorised carrier under the 2018 Regulations. Sub regulation (1) lays down as many as 13 responsibilities of an authorised carrier. Paragraphs (1) and (m) are relevant. As per paragraph (1), an authorised carrier shall not demand any container detention charges for the containers laden with the goods detained by customs for purpose of verifying the entries under section 46 or section 50 of the Customs Act, if the entries are found to be correct. As per the proviso, the authorised carrier may demand container detention charges for the period commencing after expiry of sixty days. Par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er not to charge demurrage charges the moment a detention certificate is issued. Referring to section 45(2)(b) of the Customs Act, Supreme Court held that the said provision cannot be construed to mean authorizing a customs officer to issue a detention certificate in respect of the imported goods which would absolve the importer from paying the demurrage charges and which would prevent the proprietor of the space from levying any demurrage charges. In the absence of any provision in the Customs Act entitling the customs officer to prohibit the owner of the space where the imported goods have been stored from levying the demurrage charges, levy of demurrage charges for non-release of the goods was held to be in accordance with the terms and conditions of the contract and was as such held to be a valid levy. 75. Supreme Court in All India Power Engineer Federation (supra), was examining amongst others waiver as a legal concept in the context of a power purchase agreement under the Electricity Act, 2003. One of the questions which arose for consideration was when public interest is involved whether waiver can at all take the place of a right in favour of the generator of electricity u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... line and the importer. Section 141 cannot be construed to confer power upon the customs officers to intervene in a contractual dispute between importer and shipping line. This court noted that no statutory provision or any rule conferring any legal right on the importer and the same being infringed at the hands of the respondents were brought to its notice to invoke its writ jurisdiction. As noted above, the decision in this case was rendered on 30th June, 2015 much before the 2018 Regulations came into effect and therefore this court had no occasion to examine the impact of the said Regulations. 77. We may now turn our attention to the decision of the Supreme Court in the case of Mumbai Port Trust (supra), on which much emphasis has been placed by both Mr. Singh, learned Additional Solicitor General and Mr. Kamat, learned counsel for respondent No. 4. In that case, the High Court of Punjab and Haryana had allowed the writ petition filed by the importer and held that detention of the goods imported by the importer by the customs at the instance of the Directorate of Revenue Intelligence was illegal; therefore, the High Court directed that the goods imported by the importer should b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rivate contract between the importer and the carrier i.e. the shipping line. Directorate of Revenue Intelligence or the customs authorities can be directed to pay the demurrage/detention charges only when it is proved that the action of the said authorities is absolutely mala fide or is in gross abuse of power. Even if an importer feels that it has been unjustly dealt with, still it must clear the goods by paying the charges due and then claim reimbursement from the customs authority. Therefore, Supreme Court held that the High Court could not have in a writ proceeding directed the Directorate of Revenue Intelligence or the customs to pay the detention charges to the shipping line since these were to be paid on the basis of a contract between the importer and the shipping line. The raison d'etre of the Supreme Court ruling can be found in paragraphs 29 to 32 which we quote hereunder:- 29. Assuming for the purpose of the decision of this case that Mumbai Port Trust is a custodian or cargo service provider, the question that arises is whether these Regulations apply to the Mumbai Port Trust. These Regulations have been framed under Section 157 of the Customs Act. Section 160(9) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and would not be attracted to the facts of the present case. In addition to the distinguishing features clearly discernible from paragraphs 29 to 32 which we have extracted above, we also find that relationship between the petitioner and the shipping line is contractual being bound by the bill of lading dated 4th June, 2020, but in this case respondent No. 3 has issued two detention cum demurrage waiver certificates dated 10th November, 2020 and 16th November, 2020, one to the container freight station i.e. respondent No. 5 and the other to respondent No. 4 not to demand any rent or demurrage or detention charges. In the certificate addressed to respondent No. 4, it has been clarified that the goods are detained goods and hence as per Regulation 10(1)(l) of the 2018 Regulations, it was directed not to demand any detention charges and to facilitate clearance of the goods immediately. Official respondents in their reply affidavit have stated that the container freight station i.e., respondent No. 5 has expressed its willingness to comply with the detention cum demurrage waiver certificate. It is only the shipping line which has raised objection contending that it is not bound to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertifying that the subject goods are detained goods and directing respondent No. 4 not to demand any detention charges in respect of the containers as per Regulation 10(1)(l) of the 2018 Regulations and thus facilitate clearance of the goods immediately. Respondent No. 4 has only collaterally questioned the effectiveness of such a certificate as being not bound by it. It has not stated anything in the reply affidavit regarding any independent challenge made by it to the said certificate. Question is whether it is open to respondent No. 4 or for that matter a shipping line to contend that it will not comply with the mandate of Regulation 10(1)(l) of the 2018 Regulations, more so when Regulation 10(1)(m) makes it clear that the authorised carrier shall be bound by the provisions of the Customs Act and all the rules, regulations, notifications and orders issued thereunder. 82. In the ultimate analysis, the issue boils down to a conflict between the 2018 Regulations which is a subordinate legislation having the force of law on the one hand and the contractual right of the shipping line on the other hand. 83. The question as to whether in the event of a conflict between provisions of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2020 is binding on respondent No. 4. That apart, holding on to the goods of the petitioner by respondent No. 4 post the detention cum demurrage waiver certificate dated 16th November, 2020 and levying detention charges thereafter would be illegal and thus unlawful. 88. We may further clarify that it is nobody's case that the 2018 Regulations have not been validly made. It has therefore the full force and effect of a statute. A conjoint reading of Regulations 10(1)(l) and 10(1)(m) makes it abundantly clear that the 2018 Regulations are fully binding on the shipping line and it is not open to the latter relying on a contractual provision to contend that it will not comply with a direction or certificate issued under Regulation 10(1)(l). The private contract between the petitioner and the shipping line must yield to the rigours imposed by the subordinate legislation vis-a-vis the subject matter of conflict i.e., levy of detention charges for the period under consideration. That apart, Supreme Court has held that it is an implied condition of every contract that the parties will act in conformity with the law. In case of repugnancy between provisions of a subordinate legislation an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within a reasonable time (Section 49) or warehoused in a public or private warehouse (Section 60, 61). 31. The Regulation 6(1)(I) of HCCAR lays down as under: 6. Responsibilities of Custom Cargo Service provider: (1) The Custom Cargo Service provider shall:- (a).... ....... (i) subject to any other law for the time being in force, shall not charge any rent, demurrage on the goods seized or detained or confiscated by the proper officer. 32. The Airports Authority of India, is an authority established under the Airports Authority of India Act, 1994 (hereinafter referred to as, 'the AAI Act'). In terms of the said Act, all rights, powers, authorities, privileges and ownership in respect of all property movable or immovable airports of India. The functions and powers of AAI include establishment of warehouses and cargo complex at the airports for storage and processing of the goods at the terminals. 33. Under the provision of the AAI Act, AAI is empowered to make lease of premises of Airport to carry out some of functions under the Act. AAI, for overall public interest granted some of its functions, being the functions of operating, maintaining, developing, designing, construc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... value or for revalidating or correcting the license in ordinary course of appraisal. 37. The Policy farmed by the AAI lays down that the authorities specified are authorised to sanction, in consultation with the Finance and Accounts Department, remission/waiver of demurrage charges regarding Cargo Operation. It further lays down that Demurrage charges shall not be waived where any fine/penalty/personal penalty/warning is imposed by the Customs Authority or where the delay arose by reason of dispute in the assessable value or for revalidating or correcting the license in ordinary course of appraisal. 38. Section 156 of the Customs Act lays down the general rule making power of the central government to make rules to carry out the purposes of the Act and Section 157 lays down the power of the Board to make regulations to carry out the purposes of the Act. Under the customs Act, the custom authorities are concerned with the setting up of public or private warehouses and for storage, removal and handling of imported goods in a customs area. 39. The Handling of Cargo under Customs Area Regulations, 2009 have been framed to provide for the manner in which the imported goods/export goods ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s authorities. Importers who are innocent cannot be equated with the importers who violate the law and be given the same treatment. The AAI policy makes a distinction between the two and in our view rightly so. 45. The regulations frames in 2009 themselves stipulate that they are subject to any law for the time being in force and as such the regulations would be applicable in terms of the Policy for Waiver framed by the AAI in 2003. 46. In case the HCCAR were to be made applicable in all cases then the result would be that in no case where there is a fine, penalty, personal penalty and/or warning imposed by the customs authorities CELEBI would be able to charge demurrage charges. Custom authorities are issuing waiver directions even in cases where the importers are clearly at fault and fine, penalty, personal penalty and/or warning has been imposed by the customs authorities. Even in cases of mis-declaration, undervaluation and concealment, the certificates are being issued. This is clearly giving premium to dishonesty. The waiver should be granted in genuine cases where the importers are ultimately found not at fault. It cannot be that all importers honest and dishonest are treate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscated, even as per Trip Communication, the Petitioner would not be entitled to waiver of demurrage/rent charges. The Petitioner, having accepted the finding that the consignment contained prohibited goods and was liable for confiscation, cannot claim waiver of demurrage/rent charges to the detriment of CELEBI, which was not even heard by the ACC (Imports). None of the decisions, relied upon by the Petitioner, would support the position that is being canvassed by the Petitioner. (iii) Global Impex and Others Vs. Manager, CELEBI [2019 SCC OnLine Del 11918] 106. From the afore-cited decisions, the following clear principles emerge: (i) The custodian has a lien over the imported goods, consigned to its custody. This lien may be statutory, as provided under the IAA Act, all the Major Port Trusts Acts, or contractual. It may also be relatable to Sections 170 and 171 of the Indian Contract Act, 1872. (ii) This lien entitles the custodian to retain hold of the goods, consigned to its custody, till all its dues, including ground rent and demurrage, are paid. (iii) The Customs authorities have no power, or the jurisdiction, to issue any instruction, to the custodian, requiring the custodia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven in a case where the goods are confiscated, i.e. where the import is illicit and in contravention of the provisions of the Customs Act, the importer should escape demurrage. As the legality of Regulation 6(1)(l) is, however, not in question in these proceedings, we refrain from opining further in that regard. 108. Regulation 6(1)(l) makes for fairly plain reading. It completely injuncts the Customs Cargo Services provider from charging demurrage or rent, on the seized, detained, or confiscated goods, subject, however, to any other law for the time being in force. 109. There is no dispute about the fact that CELEBI is a Customs Cargo Services provider , as defined in clause (b) of Regulation 2 of the Handling of Cargo Regulations. 110. Given the law, relating to the charging of demurrage, as it emerges from the decisions cited hereinabove, the highest that the petitioner could contend, therefore, is that there is no other law for the time being in force , as would mitigate the effect of Regulation 6(1)(l) of the Handling of Cargo Regulations. 111. Per contra, in order to escape the rigour of Regulation 6(1)(l), the Customs Cargo Service provider in the present case, CELEBI would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o v. State of Orissa (AIR 1964 SC 1793), the Supreme Court held that law generally is a body of rules which had been laid down for determining legal rights and regulations which are recognised by courts. 136. The expression law and, consequently, the expression any other law for the time being in force are, therefore, required to be compendiously interpreted, rather than infusing, into the said expression, any unwarranted restrictions. 137. The charging of demurrage by the CELEBI, being in terms of the concessionaire agreement, between the DIAL and CELEBI, which was entered into, by them, in terms of the OMDA, which, in turn, stands sanctified by Section 12A of the AAI Act, in our opinion, the CELEBI must be treated as charging, and recovering, demurrage, in accordance with law for the time being in force . 138. The inevitable sequitur would be that the injunction, engrafted in Regulation 6(1)(l) of the Handling of Cargo Regulations, on the charging of demurrage in respect of goods detained/seized, or confiscated by the customs authorities, would not apply to, or affect, CELEBI. It has to be remembered, in this context, that CELEBI is required to pay a colossal sum of ? 35,00,00,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is also submitted that Regulation 6(1)(l) itself was subject matter of challenge in the case of Delhi International Airport Pvt. Ltd., Vs. UOI [2017 (346) ELT 65 (Delhi)] and the same was rejected by the Delhi High Court, by observing as under:- 17. In the present case, the Court notices that the power to frame regulations is located in Section 42 (1) and (2) of the Airports Authority of India Act, 1994, which, by clause (d) (of sub-section [2]) provides the following specific regulation making power: (d) the storage or processing of goods in any warehouse established by the Authority under clause (g) of sub- section (3) of section 12 and the charging of fees for such storage or processing Section 141 (2), - of the Customs Act, inserted by Finance Act 18 of 2008 provides as follows: (2) The imported or export goods may be received, stored, delivered, dispatched or otherwise handled in a customs area in such manner as may be prescribed and the responsibilities of persons engaged in the aforesaid activities shall be such as maybe prescribed. This court has, in its preceding discussion, held that the above power cannot be questioned, as wide and that as long as Parliamentary intent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2767 and 2768 of 2022 submits that these appeals are filed by the Customs, challenging the common order dated 13.06.2022 passed in W.P. Nos. 23755 and 23756 of 2017. Initially, the importer was directed by the Order-in-Original dated 05.01.2016 to re-export four containers containing refrigerant gas. Complying with this order, the importer filed the necessary shipping bills on 25.06.2016 and 11.07.2016. However, the Customs authorities failed to process these shipping bills, leading to significant delays. The importer informed the Deputy Commissioner of Customs about the filing of the shipping bills through a communication dated 27.06.2016. The importer requested that suitable instructions be given to the CFS/shipping lines for releasing the cargo and waiving demurrage charges. Despite multiple communications and persistent requests, the Customs authorities did not take action to release the goods, which prompted the importer to file contempt petitions against the Customs and the CFS/shipping lines. (b) The learned counsel would further submit that during this period, there were instances of gas leakage from the containers. This situation should have expedited the re-export proce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ps in this case. Regulation 11 empowers the Customs authorities to suspend or revoke approval if CCSPs fail to comply with the Act, Rules, Regulations, notifications, or orders. Importantly, Regulation 6(1)(l) stipulates that CCSPs must not charge rent or demurrage on goods that are seized, detained, or confiscated, making a waiver certificate unnecessary. Any waiver certificate issued is binding and must be honored. Citing the Bombay High Court's decision in Supreme Industries Vs. CBIC, [2021 (377) ELT 698 (Bomb)] (Supra) which held that subordinate legislation like HCCA Regulations overrides conflicting contractual obligations, the learned counsel emphasized that the waiver certificate issued by the Customs authorities is legally binding unless challenged. (b) The learned counsel further submitted that the CFS in this case, had agreed to waive demurrage charges until the date mentioned in the detention waiver certificate dated 08.12.2022, but the goods were later confiscated with an option for redemption upon payment of a fine. Regulation 6(1)(l) mandates that the CFS must waive demurrage and rent charges even after confiscation, precluding any charges for the period beyond t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 48, 158, 170 of the Indian Contract Act and Section 48 of the Customs Act, 1962). Thus she submits that the CFS has only contractual obligations in terms of the agreement of service as it is a bailor under Section 151 of the Indian Contract Act and the question of waiver or the question of refund of charges paid after voluntarily choosing the services and making payment does not arise at all. The learned counsel thus points out that when the importer has accepted the detention without questioning its legality, it implies acceptance of the associated charges. Refunds are not permissible under the Customs Act, the Law of Contracts, or HCCA Regulations. Further, seeking refund is an afterthought. In this regard, the learned counsel relied upon the judgment of Rasiklal Kantilal Co. Vs. Port of Bombay [(2017) 11 SCC 1]. (d) The learned counsel would further point out that Section 49 of the Act deals with storage of imported goods in a warehouse pending clearance or removal and it allows the importers to store dutiable goods in public warehouse on the occasion of a delay of expected delay in customs clearing the goods. It is an enabling provision which permits the importer of the goods t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... align with the time limits specified in Sections 48 and 49 of the Customs Act, typically not exceeding 60 days. (g) On the question of maintainability of the writ petitions, the learned counsel would submit that claims for refund are time barred and there are various disputed facts which cannot be adjudicated under writ jurisdiction. She further submits that when the facts are disputed, only a civil action before the appropriate civil court can be instituted, since an adversarial trial is required to elicit the truth. (h) The learned counsel would also submit that the CFS has provided services in accordance with Sections 2(43), 45, 49, 57, and 58 of the Customs Act. Non-payment of charges entitles the CFS to exercise a lien and proceed with auction and sale under Section 150 of the Customs Act. Regulation 6(1)(l) does not negate this right. (i) The learned counsel, as regards the facts of the cases in W.A. Nos. 2230, 2235, and 2250 of 2021, would submit that the writ petitions have been filed beyond the period of limitation, after the subject shipments were gated in at the CFS, and are totally time-barred. The learned counsel further submits that the waiver certificate dated 05.06 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities and the concerned parties, were required. Furthermore, any violation of the terms and conditions of the contract are to be adjudicated by conducting a trial before the appropriate forum, and such an exercise is impermissible in the writ proceedings. The High Court cannot conduct a roving inquiry based on the affidavits filed by the parties in a writ petition. (k) Insofar as the case in W.A.No.363 of 2022, the learned counsel would submit that the importer had declared the imported goods as agricultural implements and filed the bill of entry with the Customs. However, the cargo was detained for investigation as other misdeclared goods were found inside the container, which were not imported by the declared importer. Since the importer is not a bona fide importer, he is not eligible for the refund. Similarly, the cases in W.A. Nos. 2767 and 2768 of 2022 are related to misdeclared goods. The learned counsel submits that no documents regarding the alleged detention, seizure, or confiscation have been forwarded to the CFS or the shipping lines. These parties only became aware of the facts after the third writ petition was filed by the importer, in which they were made parties ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns of Section 141 and 157, it is evident that there is no express statutory provision conferring authority on the appellants to levy cost recovery charges. In the absence of any special authorization to levy cost recovery charges, appellants have no authority to impose cost recovery charges by means of Regulation. The inevitable conclusion is that the 2009 Regulation are ultra vires the Customs Act, 1962. (b) According to the learned counsel, the customs authorities lack the power to issue certificates for waiver of detention or demurrage charges. In support of his contentions, the learned counsel has cited the following judgments:- (i) Sirajudeen Vs. Well Trans Logistics India Pvt. Ltd. and Another [O.S.A.(CAD) No.45 of 2021 decided on 13.08.2021]: 3. The appellant seeks to rely on the Handing of Cargo on Customs Area's Regulations, 2009, to suggest that upon an appropriate certificate being issued by the customs authorities, the rent and demurrage for the relevant period that the goods may have been detained in course of an investigation would stand waived. Some of the regulations from the said Regulations of 2009 have been placed. 4. It is one thing to suggest that rent or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly plain reading. It completely injuncts the Customs Cargo Services provider from charging demurrage or rent, on the seized, detained, or confiscated goods, subject, however, to any other law for the time being in force. 107. There is no dispute about the fact that CELEBI is a Customs Cargo Services provider , as defined in clause (b) of Regulation 2 of the Handling of Cargo Regulations. 108. Given the law, relating to the charging of demurrage, as it emerges from the decisions cited hereinabove, the highest that the petitioner could contend, therefore, is that there is no other law for the time being in force , as would mitigate the effect of Regulation 6(1)(l) of the Handling of Cargo Regulations. 109. Per contra, in order to escape the rigour of Regulation 6(1)(l), the Customs Cargo Service provider - in the present case, CELEBI - would have to establish that its entitlement, to charge demurrage, is relatable to any other law for the time being in force. 110. At this juncture, we may refer, profitably, to the judgment of the Supreme Court in Mumbai Port Trust v. Shri Lakshmi Steels MANU/SC/0910/2017 : 2017 (352) ELT 401 (SC), in which note, of Regulation 6(1)(l), has been taken. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iew regarding the entitlement, or otherwise, of the petitioner, to claim waiver of demurrage charges from CELEBI. It would be for the petitioner to prefer an appropriate application in that regard, and for CELEBI to take a call thereon, keeping in view its policy, and assessing the entitlement of the petitioner to waiver in terms thereof. (iv) Muscles Fusion Fze vs The Principal Commissioner Of Customs (IMP), ACC, New Delhi [2017 (354) ELT 525 (Del.)] 26. In the present case, the arrival of the consignment in Delhi, which contains prohibited goods, is clearly not innocent and is contrary to law. The goods being prohibited goods and having been confiscated, even as per Trip Communication, the Petitioner would not be entitled to waiver of demurrage/rent charges. The Petitioner, having accepted the finding that the consignment contained prohibited goods and was liable for confiscation, cannot claim waiver of demurrage/rent charges to the detriment of CELEBI, which was not even heard by the ACC (Imports). None of the decisions, relied upon by the Petitioner, would support the position that is being canvassed by the Petitioner. 27. The Regulations relied upon by the Petitioner do not co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... overlap in the Policy for Waiver framed by AAI and the HCCA R. Though initially there appears to be a conflict between the policy and the regulations but on closer scrutiny it is apparent that they can both be harmoniously construed and coexist. 44. The policy makes a distinction between the cases where the importer is innocent but his imported goods are seized and detained pending an enquiry and adjudication and the cases where the importers have indulged in misdeclaration, mis-description, under valuation or concealment and fine, penalty, personal penalty and/or warning is imposed by the customs authorities. Importers who are innocent cannot be equated with the importers who violate the law and be given the same treatment. The AAI policy makes a distinction between the two and in our view rightly so. 45. The regulations frames in 2009 themselves stipulate that they are subject to any law for the time being in force and as such the regulations would be applicable in terms of the Policy for Waiver framed by the AAI in 2003. 46. In case the HCCAR we re to be made applicable in all cases then the result would be that in no case where there is a fine, penalty, personal penalty and/or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings, the petitioner shall be entitled to release of the goods by furnishing a security bond and a Bank Guarantee securing the demurrage charges and undertaking that the Petitioner would pay the demurrage charges in case on conclusion of the adjudication proceedings any fine, penalty, personal penalty and/or warning is imposed by the customs authorities. 52. In WP(C) No. 2200/2013 since fine and penalty has been imposed , the Petitioner is not entitled to the benefit of the Policy for Waiver and the goods can only be released on payment of the demurrage charges . 53. The Writ Petitions are disposed of in the above terms. No costs. (vi) M/s.Polytech Trade Foundation vs Union Of India Ors [W.P.(C) No.3029 of 2020 decided on 10.08.2021) 35.8.1 The HCCAR were notified vide Notification 26/2009- Cus.(N.T.) dated 17th March, 2009, under Section 141(2) of the Customs Act. Regulation 3 made the HCCAR applicable to handling of imported and export goods in ports, airports, ICDs, land customs stations and in customs areas approved or specified under Section 8 of the Customs Act. 35.8.2 That the HCCAR, therefore, applies to the handling of import or export goods in ICDs cannot, therefo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecify having regard to the custody and handling of export goods in a customs area; (f) not permit goods to be removed from the customs area, or otherwise dealt with, except under and in accordance with the permission in writing of the [Superintendent of Customs or Appraiser]; (g) not permit any export cargo to enter the customs area without a shipping bill or a bill of export having been filed with the [Deputy Commissioner of Assistant Commissioner of Customs]; (h) not permit any import cargo to enter the customs area or be unloaded therein without the import report or the import manifest having been filed with the [Deputy Commissioner of Assistant Commissioner of Customs]; (i) be responsible for the safety and security of imported and export goods under custody; (j) be liable to pay duty on goods pilfered after entry thereof in the customs area, (k) be responsible for the secure transit of the goods from the said customs area to any other customs area at the same or any other customs station in accordance with the permission granted by the [Deputy Commissioner of Assistant Commissioner of Customs]; (l) subject to any other law for the time being in force, shall not charge any rent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mported goods or export goods in the customs area. Clearly, therefore, an importer or exporter availing the services of the Customs Cargo Service Provider is aware, in advance, of the charges levied by the Customs Cargo Service Provider, including the penal charges which would be levied in the event of failure, on the part of the importer or exporter, to remove the goods from the premises of the Customs Cargo Service Provider within the free period. 35.8.7 Regulation 7 which deals with power to relax and regulate, reads thus: 7. Power to relax and regulate. - (1) If the Commissioner of Customs is satisfied that in relation to the custody and handling of imported or export goods in a customs area, the Customs Cargo Service provider, for reasons beyond his control, is unable to comply with any of the conditions of regulation 5, he may for reasons to be recorded in writing, exempt such Customs Cargo Service provider from any of the conditions of regulation 5. [Provided that no exemption shall be granted in respect of any of the conditions referred to in regulation 5, where the overall safety and security of the premises are likely to be affected thereby.] (2) The Commissioner of Custo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conditions of the contract and as such would be a valid levy. The conclusion of the High Court to the effect that the detention of the goods by the customs authorities was illegal and such illegal detention prevented the importer from releasing the goods, the customs authorities would be bound to bear the demurrage charges in the absence of any provision in the Customs Act, absolving the customs authorities from that liability. Section 45(2)(b) of the Customs Act cannot be construed to have clothed the customs authorities with the necessary powers, so as to absolve them of the liability of paying the demurrage charges..... 34.12 However, the ultimate relief granted by the Court was to direct that, with the goods having already been released without payment of demurrage charges, it would be meet and proper for us to direct the Shipping Corporation and Container Corporation, if an application is filed by the Customs Authorities, to waive the demurrage charges. Summary of the legal position 35. At this point it is necessary, therefore, to summarize the principles that can be culled out from the aforementioned decisions in International Airport Authority of India v. Grand Slam Internat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mporters are dismissed. No order as to costs. Pending application(s), if any, stand(s) disposed of. (ix) M/s.The Nut Co. Vs. Union of India [MANU/GJ/1197/2022] 16. Mr. Lodha requested this Court to take into consideration the reply filed on behalf of the respondent No.2, which reads thus; 7. It is submitted that M/s. The Nut Co., Delhi, the petitioner herein, filed a bill of entry No.5173132 dated 24.08.2021 for import of Srilankan Areca Nut availing the benefit of Notification No.26/2000 dated 01.03.2000. The said bill of entry was assessed on 27.08.2021. Since, the genuineness of the country of origin certificate (COC) wa to be verified under the provisions of the Customs (Administration of Rules of Origin under the Trade Agreements) Rules, 2020 ('CAROTAR'), a request was sent for verification of the genuineness of the COC under Rule 6 of the CAROTAR. 8. It is submitted that any such request for verification under Rule 6 is to be made through a nodal office as may be designated by the Board, i.e, the Central Board of Indirect Taxes and Customs. Thus, a request vide a letter dated 04.10.2021 was sent to the Director (International Customs Division), Central Board of Indire ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or wholly unacceptable which is not the position in the present C/SCA/17523/2021 ORDER DATED: 18/04/2022 case. Hon'ble the Apex Court in Jindal Drugs Ltd. vs. Union of India (UOI) (26.07.2018-SC) being Civil Appeal No.7243 of 2018, held as follows; 7. We have read and considered the contents of Paragraphs 4 and 5 of the counter/reply affidavit filed before the High Court on behalf of the Revenue. On a consideration of the averments contained therein we are fully satisfied that no mala fide intent or any extraneous reasons/grounds can be attributed to the revenue in detaining and refusing to clear the goods of the importer(s). Rather, the actions of the revenue were prompted by what we consider to be a possible understanding of the provisions of the Notification in force i.e. Notification No.104/95, dated 30th May, 1995. The subsequent change of opinion and issuance of circular bearing No.4/1006, dated 14th May, 1996 would not made the revenue liable as has been sought to be contended by the importer(s) unless the initial action is palpably wrong or wholly unacceptable which is not the position in the present case. A stand taken by the revenue or an action undertaken which is su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 15631, 17705, 18263 of 2020 and 1328 of 2021 submits that the facility maintained by them ensures adequate space, modern infrastructure and security measures. The CFS also boasts sufficient manpower for various tasks such as loading, unloading, and handling of containers. These facilities entail significant expenses to ensure the safe and efficient processing of import and export goods. Furthermore, he argues that the CFS charges appropriate service fees, which are disclosed and agreed upon by customers before the services are rendered. These fees, he contends, are reasonable and comparable to market rates charged by similar CFSs in comparable conditions. (b) The learned counsel would further argue that the importer only provided the particulars of Bills of Entry without furnishing specific container details such as bills of lading, arrival dates, detention period and gate out dates. He emphasizes that the importers' consignments remained uncleared at the CFS beyond the free period, occupying valuable space and hindering other users. Additionally, the counsel asserts that the CFS provided all necessary facilities for secure cargo storage. (c) Adding further, the learned counse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the proceedings for confiscation of the goods which however, ultimately turned out to be unsuccessful and the Court held illegal. But that by itself, would not clothe the customs authorities with the power to direct the carrier who continues to retain a lien over the imported goods, so long as his dues are not paid, not to charge any demurrage charges nor the so-called issuance of detention certificate would also prohibit the carrier from raising any demand towards demurrage charges, for the occupation of the imported goods of the space, which the proprietor of the space is entitled to charge from the importer. The importer also will not be entitled to remove his goods from the premises unless customs clearance is given. (e) The learned counsel would further submit that the writ is not maintainable since the CFS is not subject to writ jurisdiction under Article 226 of the Constitution of India. Although the CFS is a notified custodian under Section 8 of the Customs Act, it cannot be considered as an instrumentality of the State, particularly, in matters purely involving a contractual dispute. Even presuming that the CFS could be considered an instrumentality of the State, the writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Certificate dated 05.06.2018 issued by the Deputy Commissioner of Customs that it is merely for the consideration of the CFS and is not binding. It is mentioned in the Detention Certificate that in terms of Rule 6(1)(l) of the Handling of Cargo in Customs Area Regulations, 2009, the request of the importer for waiver of detention/demurrage charges shall be considered from the date of filing of bill of entry till the date of clearance of cargo. To negate the applicability of the waiver, the learned counsel has relied on the judgment in Monika India v. Union of India [2012 SCC Online Del 1095]:- 27. Respondents have relied upon decision of a Single Judge of this Court in Narain International vs. UOI Ors., in WP(C) No. 777/1992, decided on 1st October, 2007, and the order passed in appeal bearing LPA No. 1319/2007, dismissing the appeal against the Single Judge's order. 28. On examination of the aforesaid decisions, the following legal propositions emerge: (1) The customs authorities are entitled to examine the goods and draw samples to verify and determine the duty liability. (2) The customs authorities can issue detention certificate or for good reasons may be called upon and d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t he proposes to seize are liable to confiscation. The said reasons for exercise of the power have to be recorded prior to the seizure. In the present case, as already noticed, apart from the panchnama, there is no separate order passed under Section 110(1) of the Act by the proper officer recording the reasons to believe that the goods are liable for confiscation. Since till date no other order exists and no such order has been communicated to the Petitioner, it is not possible to accept the plea of Mr. Agarwala, learned counsel for the DRI, that the 'detention' of the goods by the DRI was with the authority of law and in any event should be treated as a seizure in terms of Section 110 of the Act. (i) The learned counsel would submit that the copy of the 'Detention Certificate' F.No.S.Misc.28/2018-Gr-5A, dated 05.06.2018 issued by the Deputy Commissioner of Customs (Group 5A) submitted by the importer along with their affidavit is not addressed to the CFS. He would further submit that it also does not mention any waiver of rental charges. Without prejudice, he would argue that the Detention Certificate has been issued without authority of law as it has not been iss ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts imported by them. He would put the importer to strict proof to show that they have paid any amounts to the CFS in respect of the subject containers. The learned counsel would further submit that the CFS is only a CFS and collects only ground rent and related charges from their customers and does not collect any demurrage charges. Hence, he would argue that the allegation that the importer has unlawfully and illegally retained the amount collected from them is factually incorrect and not tenable and therefore, the question of refund does not arise at all. (l) The learned counsel would further point out that neither Section 141 nor Section 157 of the Customs Act permits the issuance of regulations that waive detention charges levied by the carrier. Section 157 of the Customs Act deals with the power of the Board to make regulations, but it does not authorize the Board to make regulations regarding the waiver of detention charges or demurrage charges to be collected by carriers or container freight stations for the services rendered by them. Hence, the provisions of the HCCAR Regulations are ultra vires the Customs Act and therefore cannot be enforced. In this regard, the learned c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a particular purpose. In such a case, the consequence of creation of the deeming fiction cannot extend beyond the purpose for which it was created.23 We find ourselves unable to hold, as Mr. Sibal would exhort us to do, that, merely because, for this limited purpose, CFSs and ICDs are to be treated as customs areas and notional extensions of the Port, they would, ipso facto, be mandatorily subject to every executive direction issued by the CBIC. 39.4. CFSs and ICDs are not creatures of the Customs Act, as the petitioners would seek to contend. They are, essentially, in the nature of godown facilities - whether privately owned or managed by governmental agencies such as the Central Warehousing Corporation or the Container Corporation of India (which, as on date, manages all ICDs in the country) - which owe their entitlement to operate as CFSs and ICDs (for the purpose of loading and unloading of export, and imported, goods) to the notifications issued under Section 7 or Section 8 of the Customs Act. That, by itself, cannot render the collection of charges by CFSs or ICDs from their customers, penal or otherwise, subject to control by the CBIC. The CBIC, therefore, has wisely not ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be designated as Representative. 15. The Court also took into consideration and referred to the following passage from the judgment in Pradeep Kumar Biswas and Ors. v. Indian Institute of Chemical Biology and Ors. MANU/SC/0330/2002 : (2002) 5 SCC 111. 40. The picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesis, be considered to be a State within the meaning of Article 12. The question in each case would be--whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State. 16. The aforesaid judgment was relied upon by another Constitution Bench in M/s. Zee Telefilms Ltd. and Anr. v. Union of India and Ors. MANU/SC/0074/2005 : (2005) 4 SCC 649. In that case, the Court was concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hts. Article 12 appears in Part III of the Constitution, which pertains to 'Fundamental Rights'. Therefore, the definition contained in Article 12 is for the purpose of application of the provisions contained in Part III. Article 226 of the Constitution, which deals with powers of High Courts to issue certain writs, inter alia, stipulates that every High Court has the power to issue directions, orders or writs to any person or authority, including, in appropriate cases, any Government, for the enforcement of any of the rights conferred by Part III and for any other purpose. 43. There is yet another very significant aspect which needs to be highlighted at this juncture. Even if a body performing public duty is amenable to writ jurisdiction, all its decisions are not subject to judicial review, as already pointed out above. Only those decisions which have public element therein can be judicially reviewed under writ jurisdiction. In The Praga Tools Corporation v. Shri C.A. Imanual and Ors. MANU/SC/0327/1969 : (1969) 1 SCC 585, as already discussed above, this Court held that the action challenged did not have public element and writ of mandamus could not be issued as the actio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CFS. It is the duty of every citizen to obey all laws, but this does not transform a private company into a public entity. (d) The learned counsel asserts that while CFSs do not contest the applicability of the HCCA Regulations, Regulation 6(1)(l) is deemed inapplicable. She argues that only regulations falling under the jurisdiction of Section 159 of the Customs Act can be enforced upon CFSs. Therefore, there exists significant uncertainty regarding the applicability of Regulation 6(1)(l) of HCCA Regulations, especially in the light of the rationale outlined in the recent judgment of the Telangana High Court. In essence, the learned counsel contends that if any regulation is formulated pursuant to Section 159 of the Customs Act and pertains to a subject within the scope of the said section, it should logically apply. However, if such a regulation cannot reasonably apply to any entity, particularly CFS, then, its enforcement becomes questionable. Moreover, the learned counsel contends that if there are any other laws being in force as per Regulation 6(1)(l), like the Indian Contract Act or Customs Act in force allowing charging of rent or storage charges, then Regulation 6(1)(l) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er to pay ground rent for the period from 04.12.2016 to 27.12.2016, they removed the goods nine days after the date of the said order. Hence, the importer cannot claim any further waiver without an order from the authority. The amount involved is Rs. 1,08,000/-, which cannot be waived as such a claim lacks any legal basis. He further emphasizes that the appellant, being a CFS, the collection of rent is the sole source of income for maintaining the warehouse, inclusive of substantial machinery. Therefore, according to the learned counsel, the finding that the importer removed the goods in the 'shortest possible time' is legally unsustainable; and that waiving the detention charges beyond the stipulated period will inflict financial loss upon the CFS. (d) The learned counsel also contends that only civil courts have the authority to resolve the contractual obligations between the appellant and the importer, and not before the High Court under Article 226 of the Constitution of India, as this is a private dispute. 24.3. Submissions of shipping lines 24.3.1.(a) Dr.R.Sunitha Sundar, learned counsel appearing for the 'shipping lines' / 'steamer agents', would stre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or demurrage. (c) In response to the detention certificate issued by the Customs authorities, it is highlighted that the goods were provisionally released under Section 110A of the Customs Act, indicating pending adjudication, thus precluding any retrospective waiver of charges. She further contended that the importer's failure to mitigate its losses by not availing customs bonding for the goods, as provided under Section 49 of the Customs Act, precludes them from claiming any waiver of charges. Finally, it is emphasized that both reliefs sought by the importer are directed solely against the steamer agent, a private contracting party not amenable to writ jurisdiction, and the claims for refund of payments under different contracts of carriage should be pursued separately. (d) As regards W.A.No.1667 of 2022, it is submitted that the steamer agent functions solely as an agent of the carrier and is not bound by the Sea Cargo Manifest and Transhipment Regulations, 2018 (SCMT Regulations). Even if SCMT Regulations were deemed applicable, it is argued that the conditions and restrictions therein do not justify waiver under Regulation 10(1) of SCMT Regulations. (e) The learned coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... license under HCCA Regulations, as it is intended for CFS. He contends that the explanatory memorandum of HCCA Regulations clearly limits its application to ICDs (Inland Container Depots), CFSs, seaports, or airports of Land Customs Stations (LCS), thus excluding carriers. Therefore, including carriers in the definition of custom cargo service providers is legally unfounded. (b) He further highlights that neither the Import Manifest Vessels Regulation, 1971 nor the Export Manifest Vessels Regulation, 1976 provides for waiver of detention charges. He argues that the imports of all the cargos which are subject matter of the present writ petitions and writ appeals have taken place in 2017, and therefore, SCMTR 2018, which only came into effect from 1st August, 2019, cannot be applied retrospectively to importers prior to that date. (c) He also asserts that mandamus cannot be issued for matters not prescribed by statute. Since HCCA Regulations does not apply to carriers, it cannot be enforced in a writ petition. Disputes between importers and carriers are contractual and should be resolved in civil courts. Refunding detention charges is beyond the scope of contractual arrangements, as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hem from the purview of the 2009 Regulations. Regarding the interpretation of Regulation 2(b) of the 2009 Regulations, which the importers argue includes shipping lines, the learned counsel denies this interpretation. He points out that the definition provided in the Act begins with the word means, indicating an exhaustive definition that does not expressly include authorized sea carriers. Sea carriers are involved solely in discharging cargo/containers at the port and do not have custody over them, further supporting their exclusion from the 2009 Regulations. (e) The learned counsel emphasizes that Container Freight Stations and Ports covered by the 2009 Regulations must possess licenses or approvals under Regulations 5 and 9. Since sea carriers/shipping lines do not obtain licenses, they are not bound by Regulation 6(1)(l). On the matter of detention certificates, he argues that they merely certify the duration of detention or confiscation and do not entail any waiver. The prohibition against charging rent or demurrage on goods stems solely from Regulation 6(1)(l), not from the detention certificate itself and thus, any challenge to the certificate, is unnecessary. (f) The learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. Vs Director Town Country Planning Department, Haryana Ors. [2010 (14) SC 1] . 24.3.4.(a) Mr.Karthik Sundaram, learned counsel appearing for the Non-vessel owning common carrier in W.P. No. 17386 of 2022 would submit that the importer is seeking release of imported goods under Bill of Entry dated 05.05.2022 without levying detention, demurrage and container storage charges, based on the detention certificate issued by the Customs Department. He would further submit that permission for warehousing of the goods was provided by customs authorities on 13.05.2022. The 21 free day period as per the Bill of Lading ended on 26.05.2022. The 60-day period from the date of Bill of Entry ended on 08.07.2022. Despite warehousing permission on 13.05.2022, the importer chose not to warehouse the goods and did not pay container detention charges beyond the 21 free days as the carrier refused release without payment. (b) The learned counsel raised the two primary legal issues and they are: (i) Whether Container Detention Charges can be waived/exempted under Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 (HCCAR)? (ii) Whether Container Detention Charges can be waive ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es for the management of its internal affairs. In exercise of this power, NOIDA formulated the Service Regulations of 1981. Rule 16 of the Service Regulations sets out the 'Sources of Recruitment' for posts under NOIDAs authority. By Clause (iv) of Rule 16 NOIDA has the power to modify the sources of recruitment for posts under its supervision. It is in exercise of this power that NOIDA formulated the Promotion Policy of 2005 which sets out the sources and qualifications for recruitment in its various departments. It is well established that delegated legislation is susceptible to invalidity on the grounds of being ultra vires its parent legislation but also ultra vires other primary legislation. Where the provisions of a primary legislation (the Architects Act) are contradictory to the provisions of a delegated legislation (the Promotion Policy 2005), the provisions of the primary legislation must prevail. This principle is well established and has received articulation by this Court on several occasions. In Indian Express Newspapers v. Union of India MANU/SC/0406/1984 : (1985) 1 SCC 641 Justice Venkataramiah speaking for a three-judge Bench of this Court stated: 75. A pie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... parties. Section 170 of the Indian Contract Act engraft the principle of Bailee's lien, namely if somebody has received the articles on being delivered to him and is required to store the same until cleared for which he might have borne the expenses, he has a right to detain it until his dues are paid. But it is not necessary in the case in hand to examine the common law principle and the bailee's lien inasmuch as the very terms of the contract and the provisions of the Bills of Lading,, unequivocally conferred power on the appellant to retain the goods, until the dues are paid. Such rights accruing in favour of the appellant cannot be nullified by issuance of a certificate of detention by the customs authorities unless for such issuance of detention certificate any provisions of the Customs Act authorities. We have not been shown any provisions of the Customs Act, which would enable the customs authorities to compel the carrier, not to charge demurrage charges, the moment a detention certificate is issued. It may be undoubtedly true that the customs authorities might have bona fide initiated the proceedings for confiscation of the goods which however, ultimately turned out ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with without infringing any public right or public policy. Relying on the above decision, the learned counsel states that a party can legally waive rights of a private nature. (g) Delving into the text of Regulation 10(1)(l) of the SCMT Regulations, the learned counsel argued that even if applicable, it cannot waive container detention charges (a) beyond the period of 60 days from the date of Bill of Entry, as per the proviso; (b) if the entries are found to be incorrect; and (c)in cases where the containers laden with goods are not detained by the customs authorities for verification of entries. He would further point out that the terms detention / detained are not used or found in the Customs Act, which only provides for seizure of goods under Section 110, as held in:- (i) J.K Exim v. Principal Commissioner [(2017) 348 ELT 612] (Mad)] (ii) Mohd. Salman Khan v. Union of India [(2016) SCC OnLine Del 6739] (iii) Sunil Patil v. Union of India [(2024) 15 Centax 439 (del.) (h) Specifically addressing the facts of the present case, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh there was an option to temporarily store the imported cargo offered by the Customs Department under Section 49 of the Act during the investigation, the importer/appellant did not take advantage of it. (b) The learned counsel also points out that even in cases where entries made in the Bill of Entry are found to be correct upon verification, the proviso to Regulation 10(1)(l) authorizes the demand of container detention charges for a period beyond 60 days. He also points out that even now, there are no provisions in the Customs Act, 1962, nullifying the rights of the carrier under the Bills of Lading Act and Contract Act. (c) The learned counsel also points out that the SCMT Regulations, are subordinate legislations made by the Central Board of Indirect Taxes and Customs in the exercise of powers conferred under Sections 157 read with 30, 30A, 41, 41A, 53, 54, 56, 93(8), and 158(2) of the Customs Act. Though none of the Sections referred to above clothes the Board with the power to supersede the right of the carrier in their relationship with the consignee-importer, the rights of the Carrier to claim container detention charges have been restricted by Regulation 10(1)(l). In supp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lative of any plenary legislation made by the Parliament or State Legislature. It was also held in that case that, the power conferred on the rule-making authority to make rules is only for the purpose of carrying out the purposes of the Act and not dehors the same. In other words, rules cannot be framed in matters that are not contemplated under the Act and the rules made must conform to the legislative policy and they must not be framed in contravention of the constitutional or statutory scheme. (iv) The Supreme Court in State of Rajasthan Vs Basant Nahatha, [(2005) 12 SCC 77 ] held that essential legislative functions cannot be delegated. Therefore, the learned counsel states that the Non-Vessel Operating Common Carrier is entitled to container detention charges claimed from the importer/appellant in terms of the bill of lading concerned for the whole period while the container remained under detention. 24.3.6.(a) Mr.Raffiq Mohammed, learned counsel representing M/s. Lloyd and Joseph, learned counsel appearing for the appellant / Non Vessel Operating Common Carrier in W.A.No.2073 of 2022, would submit that they have been providing shipping services as a shipping agent in India s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and they are not obligated to adhere to it. Therefore, it is submitted that since the appellant has not acted as an authorized sea carrier in the present shipment, they cannot be compelled to abide by the impugned detention and demurrage waiver certificate. 24.4. Submissions of Customs authorities 24.4.1.(a) Mr.V.Sundareswaran, learned senior panel counsel appearing for the appellant / Customs Department in W.A. Nos. 2767 and 2768 of 2022 would submit that in the common order dated 12.06.2022 passed in W.P. Nos. 23755 23756 of 2017, the learned judge directed the appellants (Customs authorities) to pay the loss caused to the 2nd and 3rd respondents (Customs Freight Stations) for the period after 19.10.2015, on account of storage charges for the prohibited R22 refrigerant gas imported by the 1st respondent. (b) The learned senior panel counsel for the appellants submits that the importers in these cases had illegally imported 80000 kgs of prohibited R22 refrigerant gas by misdeclaring it as R410A refrigerant. After due process, the prohibited goods were confiscated vide Order-in-Original dated 05.01.2016, with an option to redeem the goods for re-export subject to payment of redemp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and findings, the learned Judge directed the Customs to bear the loss caused to the CFS on account of the storage of R22 refrigerant gas for the period thereafter, which is unwarranted and uncalled for. Hence, the learned senior panel counsel submitted that the importer, being a willful defaulter who imported prohibited goods by misdeclaration, is not entitled to any waiver of demurrage charges beyond what has already been allowed for the period up to 19.10.2015. Therefore, the learned senior panel counsel prays that the order passed by the learned Judge, directing that the loss caused to the Container Freight Station on account of storage of prohibited goods, viz., R22 refrigerant, be borne by the Customs Department, is liable to be set aside. (d) As regards W.A.No.574 of 2022, the learned senior panel counsel appearing for the respondent/customs department would submit that the importer has filed the present appeal challenging the Final Order passed by the learned Judge in WP.No.26838 of 2018, dated 01.07.2021, who dismissed the writ petition praying for a Mandamus to refund Rs. 20,57,526.72 paid by the importer for the release of goods by the CFS. The learned Judge dismissed th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Delhi High Court in the case of M /s. Trip Communication Pvt. Ltd. vs Union of India reported in 2014 (302) ELT 321, after harmoniously construing the HCCA Regulations, held that when the importer is at fault and fines/penalties are imposed by the Customs authorities, granting the benefit of waiver of demurrage is unreasonable as the importer had provided the space/warehouse to suffer and was not the intention behind the HCCA Regulations. (ii) The Division Bench of the Delhi High Court in the case of M/s. Muscles Fusion FZE vs Principal Commissioner reported in 2017 (354) ELT 555 has categorically held that Regulation 6(1)(l) of HCCA Regulations does not apply to goods which are confiscated. Further, the Court observed that an importer/exporter having accepted the finding that the consignment contained prohibited goods cannot claim waiver of demurrage charges. The Court also added that prohibited goods which are confiscated are not entitled to re-export, without payment of demurrage or ground rent. (iii) The Hon'ble Supreme Court in the case of M/s.Rasiklal Kantilal Co. vs Board of Trustees reported in 2017 (348) ELT 3 (SC), has held that delay in taking delivery of imported go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , a standard procedure is adopted for issuing detention certificates for goods detained pending investigation, often due to classification doubts. (d) Regarding maintainability, the learned Additional Solicitor General opposes the application of precedents like K.K. Saksena Vs. International Commission of Irrigation and Drainage Ors. and St Mary s Education Society Anr. Vs. Rajendra Prasad Bhargava Ors. , arguing that they do not align directly with the present cases, which are distinguishable. (e) The learned Additional Solicitor General emphasizes the government's pervasive control under Section 8 of the Customs Act, 1962, and Section 141, stating that ownership of land does not negate control once designated as a 'customs area'. In this context, he refers to the Supreme Court judgment in M/s. Zee Telefilms Ltd. and Anr. Vs. Union of India and Ors. (2005) 4 SCC 649, where the Court held that the control exercised over BCCI was merely regulatory in nature, especially considering BCCI's status as a society. (f) In conclusion, the learned Additional Solicitor General asserts that the Customs Department's control over designated customs areas, regardless of privat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersally to all cases of goods seizure, detention, or confiscation by Customs Authorities, irrespective of importer classification. This blanket prohibition renders any arguments regarding the waiver period raised by the CCSP i.e., CFS/shipping lines irrelevant. Additionally, the learned Judge has explicitly stated that CCSPs are not permitted to charge rent or demurrage, and any challenges to the regulations' validity cannot be entertained, including claims of natural justice violations or regulatory disparities. Furthermore, the contention that waivers can only be granted for a certain period lacks support in the regulations' language. (d) The learned senior counsel would further submit that the judgments cited by the CFS/container terminals, such as in the cases of Muscles Fusion (supra) Global Impex (supra), are not applicable here, as they concern statutory charges, unlike the present case. Additionally, the Polytech Trade Foundation case (supra), where it was remarked that Shipping Lines are not CCSP (Customs Cargo Service Providers), was based on different circumstances regarding the implementation of directions issued by DCS (Deputy Commissioner of Customs). This rem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents with the detention certificates issued in accordance with the HCCA Regulations. 24.5.3.(a) Mr.V.P.Raman, learned counsel would further submit that the CCSP's argument regarding the non-binding nature of the waiver certificate lacks merit. The waiver certificate, being an official direction under the HCCAR Regulations, has a binding legal effect that supersedes any contractual agreements between the CCSP and the importer to the extent of any conflict. This legal principle is upheld by the Bombay High Court in Supreme Industries Vs. CBIC (2021 (377) ELT 698 (Bom), where it was held that regulations as subordinate legislation have the force of law and override contractual obligations where there is repugnancy. Without challenging the regulation or waiver certificate, the CCSP's contention that the waiver certificate is not binding is legally untenable. (b) The learned counsel further submits that the common order dated 13.06.2022 passed in the writ petitions is well-reasoned, reflecting a comprehensive examination of the facts and applicable law. The Customs' and CCSP's appeals against this order lack substantial grounds and should therefore be dismissed. III. DIS ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 46 [and section 50 ], (a) where the importer or exporter is unable to make self-assessment under sub-section (1) of section 17 and makes a request in writing to the proper officer for assessment; or (b) where the proper officer deems it necessary to subject any imported goods or export goods to any chemical or other test; or (c) where the importer or exporter has produced all the necessary documents and furnished full information but the proper officer deems it necessary to make further enquiry; or (d) where necessary documents have not been produced or information has not been furnished and the proper officer deems it necessary to make further enquiry, the proper officer may direct that the duty leviable on such goods be assessed provisionally if the importer or the exporter, as the case may be, furnishes such security as the proper officer deems fit for the payment of the deficiency, if any, between the duty as may be finally assessed or re-assessed as the case may be, and the duty provisionally assessed. [(1A ) Where, pursuant to the provisional assessment under sub-section (1), if any document or information is required by the proper officer for final assessment, the importe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mports made by an individual for his personal use; (c) the duty and interest, if any, paid on such duty borne by the buyer, if he had not passed on the incidence of such duty and interest, if any, paid on such duty to any other person; (d) the export duty as specified in section 26; (e) drawback of duty payable under sections 74 and 75. Section 45: Restrictions on custody and removal of imported goods. (1) Save as otherwise provided in any law for the time being in force, all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the [Principal Commissioner of Customs or Commissioner of Customs] until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. (2) The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force, (a) shall keep a record of such goods and send a copy thereof to the proper officer; (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o India: Provided further that where the bill of entry is not presented within the time so specified and the proper officer is satisfied that there was no sufficient cause for such delay, the importer shall pay such charges for late presentation of the bill of entry as may be prescribed.] (4) The importer while presenting a bill of entry shall make and subscribe to a declaration as to the truth of the contents of such bill of entry and shall, in support of such declaration, produce to the proper officer the invoice, if any, [and such other documents relating to the imported goods as may be prescribed. [(4A) The importer who presents a bill of entry shall ensure the following, namely: (a) the accuracy and completeness of the information given therein; (b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force. (5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption fora bill ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orter that the goods cannot be cleared within a reasonable time, the goods may, pending clearance, be permitted to be stored for a period not exceeding thirty days in a public warehouse, or in a private warehouse if facilities for deposit in a public warehouse are not available; but such goods shall not be deemed to be warehoused goods for the purposes of this Act, and accordingly the provisions of Chapter IX shall not apply to such goods: Provided that the Commissioner of Customs may extend the period of storage for a further period not exceeding thirty days at a time. . Section 50: Entry of goods for exportation. (1) The exporter of any goods shall make entry thereof by presenting 1 [electronically] [on the customs automated system] to the proper officer in the case of goods to be exported in a vessel or aircraft, a shipping bill, and in the case of goods to be exported by land, a bill of export [in such form and manner as may be prescribed]. [Provided that the [Principal Commissioner of Customs or Commissioner of Customs] may, in cases where it is not feasible to make entry by presenting electronically [on the customs automated system] , allow an entry to be presented in any oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to be in force notwithstanding the transfer of the goods to another warehouse. (5) Where the whole of the goods or any part thereof are transferred to another person, the transferee shall execute a bond in the manner specified in sub-section (1) or sub-section (2) and furnish security as specified under subsection (3).] 110. Seizure of goods, documents and things . (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. [(1A) The Central Government may, having regard to the perishable or hazardous nature of any goods, depreciation in the value of the goods with the passage of time, constraints of storage space for the goods or any other relevant considerations, by notification in the Official Gazette, specify the goods or class of goods which shall, as soon as may be after its seizure under sub-section (1), be disposed of by the proper officer in such mann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity and conditions as the [adjudicating authority] may require. Section 141. Conveyances and goods in a customs area subject to control of officers of customs . (1) All conveyances and goods in a customs area shall, for the purpose of enforcing the provisions of this Act, be subject to the control of officers of customs. (2) The imported or export goods may be received, stored, delivered, despatched or otherwise handled in a customs area in such manner as may be prescribed and the responsibilities of persons engaged in the aforesaid activities shall be such as may be prescribed. Section 157. General power to make regulations . (1) Without prejudice to any power to make regulations contained elsewhere in this Act, the Board may make regulations consistent with this Act and the rules, generally to carry out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such regulations may provide for all or any of the following matters, namely: (a) the form [and manner to deliver or present] of a bill of entry, shipping bill, bill of export, [arrival manifest or import manifest], import report, [departure manifest or export manifest], exp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s and includes a custodian as referred to in section 45 of the Act and persons as referred to in sub-section (2) of section 141 of the said Act. Regulation 3: These regulations shall be applicable to the handling of imported and export goods in ports, airports, inland container depots, land customs stations and in customs areas approved or specified under section 8. Regulation 5: The Customs Cargo Service provider for custody of imported goods or export goods and for handling of such goods in a customs area shall fulfill the following conditions, namely:- (1) Provide the following to the satisfaction of the Commissioner of Customs, namely: (i) Infrastructure, equipment and adequate manpower for loading, unloading, stacking, handling, stuffing and de-stuffing of containers, storage, dispatch and delivery of containers and cargo etc., including:- (a) standard pavement for heavy duty equipment for use in the operational and stacking area; (b) free of cost or rent fully furnished office accommodation for Customs, Customs Electronic Data Interchange(EDI) Service Centre, with required amenities and facilities and residential accommodation and transportation facilities for customs staff; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordance with the permission in writing of the Superintendent of Customs or Appraiser; (g)(a) not permit any export cargo to enter the customs area without a shipping bill or a bill of export having been filed with the Deputy Commissioner or Assistant Commissioner of Customs; (h) not permit any import cargo to enter the customs area or be unloaded therein without the import report or the import manifest having been filed with the Deputy Commissioner or Assistant Commissioner of Customs; (i) be responsible for the safety and security of imported and export goods under its custody; (j) be liable to pay duty on goods pilfered after entry thereof in the customs area; (k) be responsible for the secure transit of the goods from the said customs area to any other customs area at the same or any other customs station in accordance with the permission granted by the Deputy Commissioner or Assistant Commissioner of Customs; (l) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecurity of the premises are likely to be affected thereby. (2)The Commissioner of Customs may regulate the entry of goods in a customs area for efficient handling of such goods. Regulation 9: (1) An application to act as a Customs Cargo Service provider for custody of imported or export goods and for handling of such goods in a customs area shall be made in the form of a letter to the jurisdictional Commissioner of Customs containing details as prescribed in Form A . (2) The Commissioner of Customs shall dispose of the application within forty five days of the receipt of the application. Regulation 11: (1) The Commissioner of Customs may, subject to the provisions of these regulations, suspend or revoke the approval granted to the Customs Cargo Service provider subject to the observance of procedure prescribed under regulation 12 and also order for forfeiture of security, if any, for failure to comply with any of the provisions of the Act and the rules, regulations, notifications and orders made thereunder; (2) Notwithstanding anything contained in sub-regulation (1), the Commissioner of Customs may, in appropriate cases where immediate action is necessary, suspend the approval gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sible for re-export of hazardous goods where such goods are ordered to be exported back to the exporting country; h. advise his client to comply with the provisions of the Act and in case of non- compliance, shall bring the matter to the notice of the deputy commissioner or assistant commissioner of customs as the case may be; i. not procure or attempt to procure directly or indirectly, information from the government records or other government sources of any kind to which access is not granted by the proper officer; j. ensure electronic transmission of delivery orders to the importer or the consignee and intimation of the same to the custodian and the proper officer; k. publish and display at prominent places including website or webpage of the authorised carrier the schedule of charges for the various services provided by him in relation to the imported goods or export goods or coastal goods in the customs area; l. not demand any container detention charges for the containers laden with the goods detained by customs for purpose of verifying the entries made under section 46 or section 50 of the Act, if the entries are found to be correct. Provided that the authorised carrier may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ains through the non- performance of the promise. Section 148. Bailment , bailor and bailee defined. A bailment is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them. The person delivering the goods is called the bailor . The person to whom they are delivered is called, the bailee . Explanation. If a person already in possession of the goods of another contracts to hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailor of such goods, although they may not have been delivered by way of bailment. Section 158: Repayment, by bailor, of necessary expenses. Where, by the conditions of the bailment, the goods are to be kept or to be carried, or to have work done upon them by the bailee for the bailor, and the bailee is to receive no remuneration, the bailor shall repay to the bailee the necessary expenses incurred by him for the purpose of the bailment. Section 170. Bailee's particular lien. Where the bailee has, in accordance with the purpose of the bailment, rendered any service ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the binding nature of the Regulations, which contemplate waiver of demurrage/detention charges in the above circumstances, apart from the question of maintainability raised by the CFS/Steamer Agents/Shipping Line. 29.1. The issue of maintainability of the writ petitions under Article 226 of the Constitution of India, on which extensive arguments have been made by the learned counsels for CFS/Steamer Agents/Shipping Lines, has been dealt differently by different learned Judges. In the cases before us, one batch of writ petitions in WP.Nos.15490 of 2020 etc. cases, was dismissed on 22.06.2021 and another on 01.07.2021, wherein the writ petitions viz., WP.Nos.14370 and 26838 of 2018, were held to be not maintainable as there was an inter se dispute between the CFS/Steamer Agents/Shipping Lines and the importers regarding the applicability of the terms and conditions of the contract between them and thus the question of refund could only be decided after adjudication of such disputes. In the above said orders, the learned Judge, though in principle, agreed that the importers are eligible for a refund based on the detention waiver certificate issued by the Customs authority, ultima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided as a preliminary issue, in the present cases, in view of the fact that the issue of maintainability is directly related to the question of the binding nature or otherwise of the Regulations and the consequential proposition on whether or not the said Regulations cast a duty on the CFS / Steamer Agents / Shipping Lines, to be bound by the same and thereby honour the waiver certificate issued by the Customs authorities, the same will be taken up for consideration simultaneously and decided. (D) UNDERSTANDING THE LEGAL FRAMEWORK 31. Coming to the provisions of the Act and the Regulations, Chapter III of the Customs Act deals with appointment of Customs Port, Airport, etc. We are here concerned with other entities who have been appointed under Section 7 (aa) to (f) and approved under Section 8 of the Act, by which the Principal Commissioner of Customs or Commissioner of Customs has been vested with the authority to approve any places for unloading of goods in Customs port, Customs airport or coastal port and also to specify the limits of customs area. The entities appointed under Section 7 or approved under Section 8 are bound by provisions of the Customs Act, rules and regulation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Section 17 or 18 of Act. After compliance of the conditions in Section 59, the proper officer may make an order for deposit of the goods in the warehouse under Section 60 and the period of such deposit shall be as contemplated under Section 61. Insofar as the present cases are concerned, sub-clause (c) of subsection (1) of Section 61 would be relevant, wherein goods can remain in the warehouse for a period of one year from the date of the order under Section 60(1) and for a further period of one more year for sufficient reasons to the satisfaction of the Principal Commissioner or the Commissioner of Customs. It is also clear from the provision that interest shall be payable from the 91st day on the duty payable, if the goods are not cleared. It is pertinent to mention here that the goods once presented for clearance for export or after landing, the provisions relating to verification of duty self-assessed or assessable, mis-declaration on the nature of goods, quantity or quality or the value, prohibited or restricted and the requirements under the law come into operation. The presentation of the goods for clearance is through the Bill of Entry in case of import and a Shipping bil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only a subsequent act. The various provisions discussed above also clarify the position that the goods which are imported into a customs area immediately come into the control and power of the officers of the Customs and cannot be cleared without the permission of the proper officer and therefore, there is a restriction in handling of the goods. 36. Even as per Section 141 of the Customs Act, 1962, the conveyances and goods in a customs area are subjected to the control of the officers of Customs and are to be handled in a customs area in such a manner as may be prescribed and responsibilities of a person engaged in the receiving, storing, delivering, despatching and otherwise handling import or export goods in customs area shall be such as may be prescribed by the customs authorities. The HCCA Regulations was enacted by exercising the authority under Section 141 to have pervasive control over the custodians, based on the recommendations of the Public Accounts Committee (2005-06). The Customs authorities are empowered under the Act to appoint persons or officers who are responsible for receiving, storing, delivering, despatching and handling goods in the customs areas. Therefore, i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot, therefore, a prohibitory order in terms of the proviso to Section 110(1). There is no dispute that when goods have been seized a notice to show cause under Section 124 (a) is to be served within six months provided that the period may be extended on sufficient cause being shown. (ii) M. Mohammed v. Collector of Customs C. Ex., [1975 SCC OnLine Ker 147 : (1999) 110 ELT 451], in which, it was observed as under: 2. Dr. T.K. Kochu Thomman, Counsel for the Petitioner, submits that as the period of six months from 3-7-1973 on which date Ext. P1 order was issued has elapsed and no extension of that period has been made as required under the provisions of Section 110 of the Customs Act, the respondents are not competent to retain possession of the goods, and are bound to return the same to the petitioner. On behalf of the respondents it is argued that Ext. P1 is not really an order passed under the proviso to sub-section (1) of Section 110 of the Act, as there is no reference to that proviso to that sub-section a statement that it was because it was found impracticable to seize the goods in question that the owner was ordered not to remove or otherwise deal with the goods. The Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... portedly passed under the proviso to section 110(1) of the Customs Act, 1962, on 9th November, 2000, stood superseded and the goods came to be actually seized on 22nd November, 2000, and the Customs authorities were, therefore, under an obligation to issue a show cause notice relating to confiscation of the goods under section 124 of the said Act. Not having done so within six months from 22nd November, 2000, the appellant company was entitled to return of the seized goods under section 110(2) of the said Act. 37. Now, coming to the 2009 and 2018 Regulations, we have already seen that Section 141 of the Act enables the Board to prescribe the manner in which goods may be received, stored, delivered, despatched or otherwise handled in customs area and also the responsibilities of the persons engaged in aforesaid activities. The provision is clear to include not only the custodian but every player engaged at some point in the import or export of goods. Section 156 of the Customs Act lays down the general rule making power of the Central Government to make rules to carry out the purposes of the Act and Section 157 lays down the power of the Board to make regulations to carry out the pu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s. 58.41 crore. Analysis of non-disposal of goods in 16 ICD/CFS revealed that for 1466 containers valued at Rs. 301.55 crore in Chennai (Sea), Tuticorin, Tiruchirapalli and Coimbatore the reasons for non-disposal were as under: 1. (i) Clearance of 115 containers valued at Rs. 35.00 crore involving custom duty of Rs. 16.44 crore, were locked up in court cases. 2. (ii) Twenty five containers valued at Rs. 1.21 crore involving custom duty of Rs. 0.47 crore were pending as the cases were referred to Board for Industrial and Financial Reconstruction (BIFR). 3. (iii) One hundred and eleven containers valued at Rs. 10.04 crore were detained by Special Investigation and Intelligence Branch (SIIB)/Directorate of Revenue Intelligence (DRI)/Dock Intelligence Unit (DIU) and customs duty amounting to Rs. 4.75 crore was blocked due to delay in adjudication. 4. (iv) One thousand two hundred and fifteen containers of goods valued at Rs. 255.31 crore were free from litigation, yet were delayed in clearance leading to blockage of customs duty of Rs. 59.27 crore. In above cases delays had ranged from 9 to 105 months involving a notional loss of interest of Rs. 43.03 crore. Of 1215 containers, the Dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 44.92 crore at a private CFS at Chennai. The Department did not take action to dispose off the goods in terms of section 48 ibid. On the request of the importer, the containers were transhipped (January 2003) to factory premises at Cuddalore through ICD Sattva, Pondicherry after obtaining permission from Chennai customs. The goods remaine uncleared (December 2003), causing blockage of duty of Rs. 31.59 crore for 39 months apart from notional loss of interest of Rs. 17.65 crore. Further, 354 containers of the same goods valued at Rs. 98.72 crore imported (April 2001), through Chennai Sea customs, were transhipped to the bonded warehouse of the importer through the same ICD, after obtaining permission. The goods remained uncleared (December 2003) in the bonded warehouse causing blockage of customs duty of Rs. 22.20 crore and interest thereon amounting to Rs. 7.49 crore. On this being pointed out (April 2004), the Department stated (May 2004) that the remaining 30 per cent of the equipments were yet to be received and only then would erection of the equipment be completed. The Department further stated that the importer could not clear the goods owing to their financial constraints an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nging from eight months to twelve years resulting in consequential loss of interest amounting to Rs. 3.64 crore to the Government. Also, six cars confiscated in May 2001 were awaiting disposal in Overseas Warehousing Limited, Ludhiana till May, 2004. Illustrative cases are as under: 1. (a) Forty two cargo containers (medical equipments, fruit juice, organic chemicals, oil seeds etc.) valued at Rs. 2.52 crore (involving duty of Rs. 82.42 lakh) confiscated between April 1996 and February 2003 in Kolkata Commissionerate were awaiting disposal for periods ranging from eight months to seven years (December 2003). Their non-disposal would result in deterioration in quality and commercial value. 2. (b) Four hundred and sixty bales of synthetic rags imported in October/November 1998 and lying uncleared on account of delay beyond 30 days in terms of section 48 of the Customs Act, had been confiscated in July 2000 on termination of appointment of the custodian of CFS, Thammanam (Cochin). However, no action was taken by the Department for its disposal even after two years, which resulted in blockage of revenue amounting to Rs. 36.30 lakh apart from notional loss of interest of Rs. 21.78 lakh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction value). 3.7.5 Non-disposal of export cargo Under instructions issued by the Ministry in May 1984, seized, confiscated goods were to be disposed off within the time frame prescribed for each category according to preservation periodicity i.e. goods prone to rapid decay immediately after seizure, goods having short span of life within six months from the date of seizure, and goods liable to rapid depreciation in value immediately after adjudication. Test check of records of four Commissionerates revealed that due to non-compliance of aforesaid instructions export goods worth Rs. 67.92 crore were not disposed for one to eighteen years. The following cases came to light: 1. (a) In Delhi Commissionerate export goods i.e. readymade garments, compact disc, hand tools and electronic goods worth Rs. 63.15 crore entered for export between 1985 and 2003 were lying in the export shed as unclaimed/ detained/confiscated/seized. Non-disposal as required in the aforesaid instructions, of such items having short span of life, within appropriate time limit resulted in their commercial value being lost leading to loss of revenue amounting to Rs. 49.88 crore apart from blocking of revenue amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orary storage for onward transit and outright export, transshipment, take place from such stations. CFS is essentially treated as an extension of a port/ ICD/air-cargo complex. However for importers and exporters all formalities like documentation and examination of cargo is carried out as at the ports/ICDs. Provisions in the Customs Act/instructions regarding disposal of uncleared/ unclaimed imported cargo 3. According to the Ministry of Finance, customs duty is levied on the activity of importation and the duties are collected at the time of clearance of goods for home consumption. From the time of unloading of goods into the customs area, the imported goods remain under the custody of Custodians till these are cleared from ICD/CFS for home consumption or warehousing or transshipment. As per Section 48 of the Customs Act, 1962, if the importer does not clear the goods within 30 days of unloading of cargo at Customs Port or such extended period as the proper officer may allow, or on relinquishing the title by importer of the imported goods, the custodian may dispose off the goods after seeking permission from the Customs. When the goods are pending, unclaimed/ uncleared beyond spe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the year ended March 2004, No. 10 of 2005, Union Government (Indirect Taxes Customs) relating to Non-disposal of uncleared/unclaimed imported cargo which is reproduced as Appendix-I. Audit undertook a review on working of ICD/CFS by conducting test check of records of customs as well as custodians for three years from 2000-01 to 2002- 03 in relation to transmission of import/export goods between ICD/CFS and gateway port, proper storage, safe custody and clearance thereof on payment of appropriate Customs duty to the Government. For this purpose, 37 ICD/CFS located in 13 Commissionerates were examined by Audit with the objective of seeking assessment that revenue due to the Government. viz. duty on uncleared/unclaimed goods at ICDs had been recovered in time. 9. Audit Review highlighted that (I) Non-disposal of uncleared/ unclaimed/ confiscated, import/export goods had resulted in blockage of customs revenue to the extent of Rs. 287.96 crore apart from notional loss of interest of Rs. 62.05 crore and (2) Delay in disposal of uncleared/unclaimed and confiscated goods and injudicious decision of department had caused loss of Rs. 2.96 crore. 10. The Committee s examination of some ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs. For goods that landed between 1.1.1994 and 31.12.1996, it was prescribed that a monthly list of Cargo due for disposal was to be prepared and sent to Customs for NOC and if no intimation was received from Customs within 30 days Custodian was to presume that the former had no objection and could go ahead with disposal. Further,accordingtotheseinstructionsinrespectofgoodspendingsince 1997 a monthly list was to be sent to Customs for their permission to dispose off cargo within 30 days failing which the Custodian would be free to dispose off these goods. The Board vide their Circular No.7/2004 dated 28.1.2004 further simplified the procedure for disposal of unclaimed/uncleared cargo landed upto 31.3.2003, wherein the waiting period for customs clearance/NOC has been reduced from 30 to 15 days. Notwithstanding the simplified procedure prescribed by the Board from time to time, Audit scrutiny of records of 37 ICDs/CFSs in 13 Commissionerates had revealed that goods worth Rs. 540.47 crore imported between 1985 and March 2003 were awaiting disposal for periods ranging from one to eighteen years resulting in blockage of duty amounting to Rs. 192.81 crore apart from notional loss o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oncrete action seems to have been taken by the Ministry/Board to expedite disposal of pending cargo. What is surprising is the fact that the Board was just content with issuing routine circulars asking the Commissionerates to speed up disposal of pending cargo. The Committee feel that the Ministry should have taken a pro-active role and closely monitored the disposal of cases on a case to case basis with respect to each Commissionerate where considerable backlog of cargo was pending disposal/clearance for several years. That this was not done is regrettable. While deploring the lackadaisical attitude of the Government, the Committee recommend that the Ministry should immediately direct the concerned Commissionerate to act swiftly in the matter to ensure early disposal of pending cargo. A definite time limit should be fixed for this purpose and any delay in this regard should be taken seriously and responsibility fixed both on the Custodian as well as the concerned officials of the respective Commissionerates. 61. Apart from Cargo that is pending disposal with Custodians, Audit had pointed out cases of 115 containers valued at Rs. 35 crore and involving customs duty of Rs. 16.44 cro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of seized, confiscated, unclaimed and uncleared cargo that was pending disposal, 18 were disposed off and 4 consignments are still pending. The Committee further note that in a Container Freight Station (Central Warehousing Corporation-Kolkata and Haldia) 74 consignments of goods of perishable nature valued at Rs. 4.44 crore were lying undisposed for a period ranging from 10 months to 6 years ( December, 2003) resulting in blockage of revenue of Rs. 1.45 crore. In this connection, the Ministry have explained that out of 74 containers, 39 had been disposed off and 33 containers (11 in Haldia and 22 at Kolkata CWC) are lying uncleared. Despite a monitoring system/arrangement in place whereunder the Custodians periodically submit the list of uncleared/unclaimed goods, pending with them, to jurisdictional Customs authorities and the same is monitored by them, it is incomprehensible as to how a large number of cases of cargo/ containers were pending disposal with Custodians. Ironically the Task Force constituted in 2005 to suggest measures for expeditious disposal of imported unclaimed/uncleared/confiscated cargo, in their Report have observed that the existing departmental instruction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evenue)had deposed that the Task Force constituted to suggest measures for expeditious disposal of uncleared/ unclaimed and confiscated goods etc. would look into this matter. However, the Committee now find that the Report of Task Force is conspicuously silent in this regard. The Committee would, therefore, recommend that in cases where imported cargo is uncleared/unclaimed on account of non-clearance by the importer/consignee owing to financial difficulties or otherwise, Government should formulate guidelines for fixing time-limit/cut-off period, within which all the pending cargo should be disposed off. 64. One of the important pre-requisites for effective administration is to ensure proper monitoring of the system that is in place. Monitoring involves ensuring proper maintenance of prescribed records by the concerned authorities and to keep a close and continuous watch on the working of the system and also initiating timely and effective action in cases of default. For this, the Internal Audit Wing of a Department is expected to play an effective role. The Committee were given to understand that the role of Internal Audit Wing of the Customs Department is limited to auditing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te action in disposal of goods that had become ripe for disposal. Though suo-motu action was required to be taken by the Custodian for disposal of goods they unnecessarily chose to seek permission of the Customs Department to dispose off the goods thereby leading to considerable avoidable delays. The Committee desire that there should be close coordination between Custodians and Customs to ensure speedy disposal of goods. The monitoring mechanism for speedy/expeditious disposal of uncleared/ unclaimed goods in the Customs Department also needs to be strengthened. For this, the Committee recommend that the CBEC should examine the feasibility of constituting a core group at the Board level, which should meet at regular intervals for monitoring the progress made in expeditious disposal of uncleared/unclaimed goods in various ICDs/CFSs. 67. In terms of Section 126 of the Customs Act, 1962, ownership of confiscated goods vests in the Central Government which is required to promptly dispose them to avoid loss of revenue due to deterioration of quality, commercial value of the goods and excess expenditure incurred in the maintenance of the goods etc. Even in such cases, the Committee have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In yet another case export goods i.e. ready-made garments, compact disc, hand tools and electronic goods worth Rs. 63.15 crore which entered for export between 1985 and 2003 were lying in the export shed in Delhi Commissionerate as unclaimed/detained/ confiscated/seized. Non-disposal of such items, having short span of life, resulted in their commercial value being lost leading to loss of revenue amounting to Rs. 49.88 crore apart from blocking of revenue amounting to Rs. 13.27 crore on other goods. The Ministry have contested this Audit finding by saying that the goods under question were not seized or confiscated. Some of them were connected with investigation by Customs and the remaining were abandoned export goods over which Customs had no claim. It has been contended that abandoned export goods did not come either under the category of seized or confiscated goods and therefore their non-disposal did not involve any Revenue loss. The Committee are of the opinion that since the abandoned goods occupy considerable space of the godowns of ICDs/CFSs thereby involving opportunity cost, it is imperative that the status of abandoned goods should be properly defined and appropriate ame ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Customs, New Delhi and comprising of Chief Commissioner of Customs of different zones was set up by the Ministry of Finance on 27th June, 2005 to suggest administrative measures including monitoring mechanism for clearance of cargo lying undisposed/ uncleared/unclaimed or confiscated beyond specific period of time, in an expeditious manner, by effective use of IT sources, appropriate development of manpower etc. The Committee regret to observe that the subject-disposal of uncleared/ unclaimed/ confiscated cargo seems to have been neglected by the Department/ Board until Audit conducted a review on the working of ICDs/CFSs and Public Accounts Committee took up the subject for detailed examination. It is only after that the Ministry woke up to the problem and constituted a Task Force. The Committee are of the opinion that had the Ministry seized of the problem and taken corrective measures well in advance, things would not have come to such a pass. The Task Force had submitted its Report in September, 2005. Important recommendations made by the Task Force are stated to be as under: 1. (i) The procedure laid down in the last Circular dated 28.01.2004 should be put in place as a perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... otherwise handled in a customs area. The Regulations also prescribe the responsibilities of the persons engaged in aforesaid activities. Regulation 2 (1) (b) defines Customs Cargo Service Provider, which is an inclusive definition to include all handlers of Imported and exported goods and also a custodian. It is not restricted only to a custodian. The terns any person responsible for , otherwise handling of imported goods are of wider connotations. As specified in Regulation 3, these regulations shall apply to handling of imported goods and export goods in customs area specified under section 8 of the Customs Act, 1962. This would cover all Customs facilities such as ports, airports, Inland Container Depots (ICD), Container Freight Stations (CFS) and Land Customs Stations (LCS). Imported goods would cover goods under transhipment and all goods held under the custody of CCSP. However, these regulations shall not apply to Customs bonded warehouse or to the warehoused goods which are covered under Chapter IX of the Customs Act, 1962. 37.5. Regulation 6(1) is applicable to all Customs cargo service providers , that is to say, all persons operating in a customs area and engaged in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the waiver of charges are concerned, the right to waive the demurrage/detention charges has been retained by the department. Though there is a contract fixing the rates to be paid, the Regulations have statutory force and the person whose existence is legal based on the licence/approval to operate cannot claim that the Regulations are not binding. The Regulations are therefore binding on all the persons as defined under Regulation 2 (1) (b) of HCCA Regulations. 37.8. While so, the Customs Act was amended with effect from 28.03.2018 wherein many provisions were amended and significant changes were brought about for the electronic presentation of arrival manifest or import manifest or delivery manifest or export manifest. Additionally, the amendment also brought in provisions relating to timelines and furnishing of particulars in advance for early clearance of goods. Simultaneously, the Sea Cargo Manifest and Transhipment Regulations, 2018 was brought into force with effect from 1st August 2018 to facilitate expeditious clearance. The SCMT Regulations is applicable for all cargo to be discharged, loaded, or transhipped at any Indian port and also for cargo transiting via any Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would amount to granting premium to dishonesty. There must be a nexus between the truthfulness of the particulars furnished and the waiver certificate. Therefore, the Custom authorities cannot issue directions for a waiver in cases where the importers are clearly at fault and fine, penalty, personal penalty and/or warning has been imposed by the Customs authorities as a result of misdeclaration, undervaluation and concealment. 37.13. The waiver should be granted in genuine cases where the importers are ultimately found not at fault. Honest and dishonest importers cannot be treated equally as they form different classes and it would violate Article 14 of the Constitution of India. As a result, only in cases where the importer/exporter is found innocent and there is no imposition of any fine, penalty, personal penalty, prosecution, and/or warning by the Customs authorities, the policy for waiver would be applicable and the importer would be entitled to be considered for its benefit provided a certificate entitling him to be so considered is issued by the Customs authorities. Another important aspect that needs to be considered in implementing the waiver granted under HCCA Regulati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th this contention. We have already held that the words subject to any other law for the time being in force would have to be read as a reference to the provisions of the Customs Act with regard to result of the final adjudication proceedings. Though any contract entered into would be governed by the provisions of the Contract Act to decide the inter se rights between the parties, it is still subject to law of the land, which in this case is the Customs Act, 1962 and the Regulations framed thereunder. The saving clause in Section 1 of the Contract Act clearly states that nothing contained in the Act shall affect the provisions of any Statute, Act or Regulations. This cannot be disputed. Further, as per Section 23 of the Contract Act, the consideration or object is unlawful if it is forbidden by law or if permitted would defeat the provisions of any law. It would also be useful to refer to Section 56 of the Contract Act, wherein the contract may become void because of a subsequent event not within the control of the promisor, in the instant case, the importer. 38.1. In the present cases, when the goods are presented, detained and ultimately cleared after having found that there is n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Marlapalle, learned senior counsel along with Shri Shibashish Mishra appearing on behalf of the respondents and intervenors, as to how, in absence of any pleading setting out grounds challenging the vires of Rule 4(b) and in the absence of seeking any relief to that effect, the High Court was justified in exercising jurisdiction to declare Rule 4(b) as ultra vires? In response, learned senior counsel has fairly stated that it is a defect in the pleadings as well as in the relief sought before the CAT and in the writ petition. But still, they made an unsuccessful attempt to satisfy this Court that the said rule appears to be discriminatory and therefore the High Court has rightly exercised the jurisdiction while passing the impugned order. It is a trite law that for striking down the provisions of law or for declaring any rules as ultra vires, specific pleading to challenge the rules and asking of such relief ought to be made, that is conspicuously missing in the present case. In the absence of such a pleading, the Union of India did not have an opportunity to rebut the same. The other side had no opportunity to bring on record the object, if any, behind the Rules that were brough ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch as it places a blanket ban on the charge of demurrage by the custodian of goods in case of detention, confiscation or seizure of goods by customs. However, such restriction is covered under the premise of article 19(6), by which reasonable restrictions in the interest of general public may be imposed on the right under article 19(1)(g). Investigation being an integral part of working of the Customs Department, the consignments detained by the Customs authorities or other investigating agencies, cannot be cleared during investigation particularly if such cases involve trade policy, human safety and security, security of State, etc. It is with these considerations that the impugned regulation was included in the Cargo Regulations and it should be viewed in the light of the object with which it has been framed. To this extent, the court is in agreement with the third respondent. Therefore, the allegation that the impugned regulation violates article 19(1)(g) does not survive. 13. When the subordinate legislation made under a power to carry out the provisions of the Act has reasonable nexus with the object and purpose of the enabling statute, the court is not to concern itself with ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Customs authorities, they are performing their statutory obligation. Therefore, what is also to be considered in the present case is the circumstances and the object for which the Regulations have been brought into force. 39.2. We have already seen that the 2009 Regulations were brought into force in the public interest as the Government was facing revenue losses. Further, when the goods are under the control of the Customs authority, the person holding them on instructions from a statutory authority is performing a public duty, failure of which can lead to consequences commencing from suspension or revocation or imposition of penalty. That apart, in cases involving inquiries into smuggling or prohibited goods, which has the drastic consequences of causing financial loss to the government or threat to public life, the role of CCSP is of public importance, as they act as the custodian or the handler of the goods, until further directions are given. Therefore, we disagree with the findings of the learned Judge in the orders dated 22.06.2021 01.07.2021 that the rights of the parties should be determined by the civil court. The writ petitions ought not to have been rejected on th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt has considered the issue at length and has thus observed : (SCC pp. 336-37, paras 13 14) 13. In the aforesaid case [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] , this Court was also considering a situation where the services of a Lecturer had been terminated who was working in the college run by the Andi Mukti Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust. In those circumstances, this Court has clearly observed as under : (V.R. Rudani case [Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani, (1989) 2 SCC 691] , SCC pp. 700-701, paras 20 22) 20. The term authority used in Article 226, in the context, must receive a liberal meaning unlike the term in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the fundamental rights as well as non-fundamental rights. The words any person or authority used in Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m public functions i.e. providing education to children in their institutions throughout India. (emphasis supplied) (iii) ABL International Ltd. v. Export Credit Guarantee Corpn. of India Ltd., [(2004) 3 SCC 553 : 2003 SCC OnLine SC 1442], in which, it was observed as under: 19. Therefore, it is clear from the above enunciation of law that merely because one of the parties to the litigation raises a dispute in regard to the facts of the case, the court entertaining such petition under Article 226 of the Constitution is not always bound to relegate the parties to a suit. In the above case of Gunwant Kaur [(1969) 3 SCC 769] this Court even went to the extent of holding that in a writ petition, if the facts require, even oral evidence can be taken. This clearly shows that in an appropriate case, the writ court has the jurisdiction to entertain a writ petition involving disputed questions of fact and there is no absolute bar for entertaining a writ petition even if the same arises out of a contractual obligation and/or involves some disputed questions of fact. (iv) Satimbla Sharma v. St Paul's Senior Secondary School, (2011) 13 SCC 760 : (2012) 2 SCC (L S) 75 : 2011 SCC OnLine SC 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... waiver of interest; (iv) the facts of the case were different and the High Court was not dealing with any case where the goods were seized, confiscated or not cleared as evident from para 91, wherein the High Court has lucidly held that Regulation 6 (1) (l) would not be applicable. Therefore, the contention that the contract will prevail over the regulations is not sustainable. (G) CCSPs RIGHT TO BE HEARD 41. The next issue that arises for consideration is whether the CCSPs ought to have been heard before the waiver certificates were granted. We have already seen that the right to seek a waiver stems from the Regulations, which have statutory force. The CCSPs are bound by statutory obligations. We have also held that the entitlement to waiver is dependent on the outcome of the adjudication proceedings. During the adjudication proceedings, the CCSPs have no say as it is a matter between the importer/exporter and the authorities. The detention of the goods is a statutory act for verification of the correctness of the particulars furnished. The resultant actions of confiscation or assessment of duty or levy of penalty are also statutory acts in which the role of the CCSP is limited to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tice had been observed and that non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary , Chinnappa Reddy, J. also laid down an important qualification as follows: (SCC p. 395, para 24) As we said earlier where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the court may not issue its writ to compel the observance of natural justice, not because it is not necessary to observe natural justice but because courts do not issue futile writs. (emphasis supplied) 21. It is, therefore, clear that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of the principles of natural justice. (H) PERIOD OF WAIVER 42. Now, coming to the next claim that the importers are not entitled to any waiver beyond a maximum period of 60 days as per Section 49 and 2018 Regulations, the answer, according to us, depends on the facts of each case and the timeline followed by the Customs Authorities in taking a decision. Before, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll apply under the circumstances stated in the earlier paragraphs, if the adjudication is not completed within 90 days. 42.3. It is also to be understood that the time of 90 days provided under Regulation 6 (1) (m) for clearance of the goods under 2009 Regulations is enforceable only if there is no detention by the authorities and when there is a detention of goods for verification, the timelines would not apply. This postulates the question that if the goods are not verified and an order is not passed within 60 days of detention, can the liability be fastened on the importer or the Customs Authority? The answer again is similar. If the goods are cleared with the adjudication ending in favour of the importer, there cannot be any demand and if the detention is found to be in order and such an order is passed after the time prescribed for waiver under the Regulations, the liability would fall on the authorities for the period after 60 days and on the importer until 60 days. Similarly, if the authorities delay the issuance of any order for re-export or clearance, the liability would fall on the authorities. At this juncture, it would be appropriate to recall the circumstances and obje ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y provision for payment of interest. Therefore, the only deterrent for non-compliance can be initiation of appropriate action against the CCSPs. Therefore, in cases, where the certificates are issued after conclusion of the adjudication proceedings in favour of the importer/exporter and if not complied, appropriate action may be initiated by the department by following the due process of law. (I) CONCLUSION DIRECTIVES ISSUED: 45. On the basis of the above discussion and findings arrived at, our conclusions are as follows: (1) The writ petitions under Article 226 of the Constitution will be maintainable against the CCSPs as they are bound by the statutory regulations and thus, the writ petitions filed will be deemed to for the enforcement of a statutory right and thus maintainable. (2) The 2009 HCCA Regulations, and 2018 SCMT Regulations will prevail over the contract between the parties and the waiver certificates issued by the authorities are valid in law, if the adjudication ends in favour of the importer/exporter. (3) The waiver certificate can be issued by the Customs authorities in cases the adjudication ends in favour of the importer/exporter without imposition of any duty, f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order. (13) As far as the claim for interest is concerned, it is open to the parties to approach the authority concerned, who shall consider the same and pass appropriate orders, on merits and in accordance with law. (14) It is open to the Central Government to look into the different timelines prescribed under the Act and the regulations and bring about appropriate changes to have uniform timelines and to bring in accountability. (15) The Board is directed to issue appropriate instructions in this regard and fix the liability on the officers responsible for the delay and take appropriate action against them. 46. In the result, (i) W.A. Nos. 1017/2017 and 1058/2017 challenging the order dated 08.08.2017 of the learned Judge are dismissed. (ii) W.A. Nos. 2767/2022 and 2768/2022 challenging the order dated 13.06.2022 of the learned Judge are dismissed. (iii) W.A. Nos. 2235/2021, 2175/2021, 2230/2021, 2250/2021 and W.A.No.2159/2021, are allowed by setting aside the orders dated 22.06.2021 passed by the learned Judge in WP Nos.16359, 15490, 17114 and 17433 of 2020 and 21258/2013 respectively. (iv) W.A. Nos. 363/2022 and 574/2022 are allowed by setting aside the order dated 01.07.2021 p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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