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TMI Blog2025 (4) TMI 1417X X X X Extracts X X X X X X X X Extracts X X X X ..... all necessary steps and ensure that the Detention cum Demurrage waiver dated 17.01.2025 issued under Handling of Cargo in Customs Area Regulation 2009 and Sea Cargo in Customs Area Regulation 2009 and Sea Cargo Manifest Regulation, 2018 is implemented by all concerned including Respondent No. 3 and Respondent No. 4 and thereafter to physically release in the custody of the petitioner, the imported goods comprising of 10 containers of Soda Ash Dense Industrial Grade (HSN 28362010) imported by the petitioner. B. Your Lordships may be pleased to issue a writ of certiorari or Mandamus or writ in the nature of Certiorari or Mandamus or any other appropriate Writ, order or direction to Respondent No. 1 to initiate action against Respondent No. 3 and Respondent No. 4 in terms of Sea Cargo Manifest Regulation 2018 in view of non-compliance of waiver dated 17/01/2025; C. Your Lordships may be pleased to issue a writ of certiorari or Mandamus or writ in the nature of Certiorari or Mandamus or any other appropriate Writ, order or direction to the Respondent no. 4 to waive off the detention and demurrage charges if any, in view of regulation 6 (1) (1) of the Handling of Cargo in Customs Ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherever possible. 6.4 It appears that thereafter, on 17.01.2025, respondent No. 2-Deputy Commissioner (SIIB), Customs House, Mundra informed respondent No. 3-Manager, Mundhra, CFS for waiver of the rent and demurrage charges in respect of the Cargo/goods covered under Bill No. 7388842 dated 21.12.2024 as per Rule 10 (1) (l) of Sea Cargo Manifest and Transhipment Regulations, 2018 [for short 'the Regulations, 2018) and Regulation 6 (1) (l) of Handling of Cargo in Customs Area Regulations from the date of hold i.e. 24.12.2024 till the date of issuance of No Objection Certificate dated 10.01.2025. 6.5 The petitioner, on receipt of the aforesaid letter/order dated 17.01.2025 by Email dated 18.01.2025, requested respondent No. 4 to do the needful in view of the detention waiver letter issued by respondent No. 2. 6.6 It is the case of the petitioner that, the petitioner through its Customs House Agent, by Email dated 20.01.2025, requested respondent No. 4 to share the detention Invoice up to 21.01.2025 and further enquired for the confirmation of the implementation from the waiver of the charges for clearance of the shipment. 6.7 The respondent No. 4 replied by Email dated 20.01 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shipping line and therefore, is not covered by the definition of the "Authorized Sea Carrier" as per the definition 2 (1) (d) of the Regulations, 2018. 8.1 It was further submitted that respondent No. 4 is the owner of the containers of the goods in question and have lien over the goods for recovery of their charges as per the terms and conditions of the Bill of Lading and therefore, unless and until the said charges are paid to the respondent No. 4, the respondent No. 4 is not able to deliver the goods. 8.2 In support of his contention, reliance was placed on the following averments made in the affidavit-in-reply filed on behalf of the respondent No. 4: "4. Considering the facts and grounds raised in the writ petition, the brief issues to be considered at a preliminary level by this Hon'ble Court are the following: 4.1. Whether the Waiver letter issued under Regulation 10 (1) (Q) of the Sea Cargo Manifest and Transhipment Regulations, 2018 (SCMTR) legally binding on Respondent No. 4? 4.1.1. Respondent No. 4 has not acted as the "Authorised Carrier" as the defined under defined under 2 (1) (c) and "Authorised Sea Carrier - ASC". The definition of "authorised Carrier"? unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e SCMTR, 2018 is aimed to supersede the existing Import Manifest (Vessels) Regulation, 1971 and the Export Manifest (Vessels) Regulation, 1976. In exercise of powers conferred by sub-section (2) of section 141 read with section 157 of the Customs Act, 1962, the Central Board of Excise and Customs has introduced the Sea Cargo Manifest and Transhipment Regulations 2018 (SCMTR, 2018). The SCMTR, 2018 and further public notices have introduced certain new nomenclature like " Authorised Sea Carrier - ASC", " Other Notified Carriers - ANC", "Authorised Terminal Operator - ATO", "Authorised Custodian - ACU" etc." ... ... ... ... "5.1 The subject matter of the writ petition is about a commercial contact admittedly concluded between private parties as a contract of carriage of 20x20' containerised goods under B/L bearing no. ACLJEAMUN1250924, dated 16.12.2024. As per the contract of carriage, the Petitioner is bound to pay the container detention charges for the use of containers beyond 14 agreed free days at Mundra. Thus, detention charges are the direct consequences of a breach of the contractual term (non-return of the empty container) by the petitioner. Hence, the remedy if any, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ght and Charges (3) All dues, taxes and charges or other expenses in connection with the Goods shall be paid by the Merchant. All Terminal Charges/Demurrage etc the port of discharge. Destination as per Line's Tariff & at the account of consignee" 5.7. SCMTR is a piece of delegated/subordinate legislation. Delegated legislation cannot override primary parent legislation. In Mumbai Port Trust v. Shri Lakshmi Steels, ((2018) 14 SCC 317], the Apex Court, while interpreting provisions similar to Regulation 10 (1) () in the Handling of Cargo in Customs Areas Regulations, 2009 made by the Board, has categorically held that the Regulations framed under the Customs Act are in the nature of subordinate legislation and that such subordinate legislation framed by a Board cannot, in any manner, affect the power and authority of the Port Trust flowing from the Major Port Trust Act. Therefore, upon applying the dictum so laid down, regulation 10 (1) (1) cannot in any manner, take away the rights of the respondent in the instant case as a carrier governed by the Bill of Lading Act and Contract Act. 5.8. Reliance is placed on the judgment of the Apex Court in Indian Express Newspapers v. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was given to the CFS alone by invoking Regulation 6(1)(l) of the Handling of Cargo in Customs Area Regulations, 2009 (HCCAR, 2009), which is only applicable for the Custodian (CFS). A copy of the waiver letter dated nil, signed om 17.01.2025 is annexed and marked hereto as Exhibit-4. 6.7 Subsequently, on 19.03.25, a letter seeking explanation as to why the waiver wes not granted wader provisions of SCMTR, 2018 was issued by Assistant Commissioner of Customs to Respondent No. 4. A copy of the letter dated 19.03.2025 is produced and marked hereto as Exhibit-5. 6.8 This respondent has replied in detail to the said letter dated 19.03.2025, justifying the actions of the Respondent No. 4. The copy of explanation dated 22.03.2025 is annexed and marked hereto as Exhibit-6. 6.9 On 22.03.2025, by reply to the above letter, it was clarified by this Respondent that, exclusively on commercial considerations, the principal of this respondent have decided to waive detention charges till 02.03.2025 & secure the valuable 20x20 containers back in business. The same was only on condition of the consignee paying 10 lakhs detention charges for the use of containers, calculated till 11.03.2025, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em it is submitted that upon verification, it has been found that M/s. WinWin Maritime Limited is registered with Customs under SCMTR as an 'Authorized Sea Agent' (ASA). The said registration can be duly verified from the ICEGATE portal. A copy of Snapshot attached hereto and marked as Annexure E. 11. Further it is respectfully submitted that, the contention of the M/s. WINWIN Maritime Limited, that they are not an "Authorized Carrier" and hence not bound by Regulation 10 (1) () is misconceived and contrary to the provisions of SCMTR, 2018, on the following basis: a) The definition of "Authorized Carrier" under SCMTR explicitly includes an "Authorized Sea Carrier". (b) The definition of "Authorized Sea Carrier" further includes "the master of the vessel or his agent". (c) Authorized Sea Agents (ASAs) are agents employed by an Authorized Sea Carrier to Act on their behalf. (d) M/s. WinWin Maritime Limited is registered as an Authorized Sea Agent (ASA) with Customs under SCMTR, 2018. 12. The contention that they merely acts as an agent for an NVOCC docs not exclude them from the applicability of SCMTR, 2018. As an Authorised Sea Agent, they are required to comply with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sea carrier" means the master of the vessel carrying imported goods, export goods and coastal goods or his agent, or any other person notified by the Central Government;" "3. Registration. - (1) Any person who is required to deliver arrival manifest or departure manifest shall apply to the jurisdictional Commissioner of Customs for registration in the Form-I. "Provided that the postal authority shall not be required to apply for the registration in case such authority intimates to the jurisdictional Commissioner of customs in writing, to transact business under these regulations."; (1A) Any other person notified by the Central Government for the purposes of filing arrival or departure manifest, shall be required to enter into a bond of rupees ten lakh in Form-XI and furnish a bank guarantee, or a postal security or National Saving Certificate or a fixed deposit receipt issued by a Nationalised bank, in the name of the Commissioner of Customs, for an amount of rupees ten lakhs alongwith Form-I: Provided that any Authorised Economic Operator (AEO) shall not be required to furnish a bank guarantee, or a postal security or National Saving Certificate or a fixed deposit receipt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcise of powers conferred by section 157 read with sections 30, 30A, 41, 41A, 53, 54, 56, sub-section (3) of section 98 and sub-section (2) of section 158 of the Customs Act,1962, it appears that the Regulations are framed while exercising the general powers to make the Regulation read with section 158(2) which authorizes the Central Government or Board to make Rules or Regulations under the Act for levy of fees in respect of the application etc. and that for levy of penalty. Sub-section (2) of section 157 of the Customs Act, 1962 provides for framing of Regulations which may provide, as per Clause (a), the forms and manner to deliver or present a bill of entry, shipping bill, bill of exports, import manifest, import report, departure manifest, export manifest, export report, bill of transhipment, declaration for transhipment, boat note and bill of coastal goods. 12. The Regulations, 2018, also refers to the provisions of sections 30 to 56 falling under Chapter-VI containing the provisions relating to Conveyances Carrying Imported or Exported Goods and Chapter VII-A containing Payments Through Electronic Cash Registration and Electronic Duty Credit Ledger and Chapter-VIII relating ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as found correct and accordingly waiver letter dated 17.01.2025 was issued and accordingly, the petitioner is exempted from making payment of detention charges from 24.12.2024 to 10.01.2025. 14. In view of the above facts, the waiver order/letter dated 17.01.2025 issued by respondent No. 2 is binding upon respondent No. 4 and respondent No. 4 is required to implement waiver order passed by the respondent No. 2 as per the provisions of the Regulation 10 (1) (l) of the Regulations,2018. 15. Hence, without going into further details and merits of the case, respondent No. 4 is hereby directed to release the goods which is under their custody and not under the detention of the Customs authority by implementing waiver letter dated 17.01.2025 for waiver of the detention charges under Regulation 10 (1) (l) Regulations, 2018 for the period from 24.12.2024 to 10.01.2025 as stated in the waiver letter. Such exercise shall be completed within Four Weeks from the receipt of copy of the order. 16. It is clarified that if the respondent No. 4 is desirous to challenge the order of the Customs of Authority for waiver of the detention charges, this order shall not come in its way. However, we hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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