Delhi High Court
Trip Communication Pvt. Ltd vs Union Of India & Others on 28 March, 2014
Author: Sanjeev Sachdeva
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 13 th December, 2013
Judgment pronounced on: 28 th March, 2014
+ W.P.(C) 7438/2012
T RIP C OMMUNICATION P VT . L TD ....P ETITIONER
Through: Mr. Priyadarshi Munish
Advocate
Versus
U NION OF I NDIA & O THERS ..... R ESPONDENTS
Through: Ms. Sweety Manchanda, CGS C
with Mr. Debashis Mukherjee,
Advocate.
Mr. Satish Kumar, Sr. Standing
Counsel for R-2 and 3.
Ms. Sarul Jain, Advocate for R-4
Mr. Atul Sharma, Mr. Milanka
Chaudhury, Mr. Sarojanand Jha
and Ms. Satakshi Sood,
Advocates for DIAL.
Ms. Anjana Gosain, Advocate
for AAI.
Mr. Satish Aggarwala, Advocate
for R-6.
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WP(C)7438/2012 & 2200/2013 Page 1 of 36
+ W.P.(C) 2200/2013
M/ S K RISHNARAJ I MPORTS ....P ETITIONER
Through: Mr. Priyadarshi Manish
Advocate
Versus
U NION OF I NDIA & O THERS ..... R ESPONDENTS
Through: Mr. Sunil Kumar, Advocate for
UOI.
Mr. Satish Kumar, Sr. Standing
Counsel for R-2 and 3.
Ms. Sarul Jain, Advocate for R-4
Mr. Atul Sharma, Mr. Milanka
Chaudhury, Mr. Sarojanand Jha
and Ms. Satakshi Sood,
Advocates for DIAL.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE SANJEEV SACHDEVA
SANJEEV SACHDEVA, J.
1. The petitioners in these petitions have so ught waiver
of the demurrage/detention charges claimed by the
Celebi Delhi Cargo Terminal Management India (Pvt.)
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Limited (hereinafter referred to as „CELE BI‟) for the
period the goods were in their warehouse pursuant to
a seizure order issued by the custo ms authorities.
Factually the two petitions are different, however as a
common legal issue arises in both the matters, both
the writ petitions were heard together and are being
disposed of by a common order.
2. The question that arises for consideration is whether
the CELEBI is entitled to charge demurrage /detention
charges for the period the goods were detained by the
customs authorities and for which the customs
authorities have issued a certificate advising CELEBI
to waive off demurrage charges in terms of Section
6(1)(l) of the Handling of Cargo under Customs Area
Regulations, 2009 (hereinafter referred to as the
'HCCA R‟)? To answer the above question what needs
to be determined is whether CELE BI is bound by the
HCCA R or by the Policy for Waiver of Demurrage
Charges notified by the Airports Authority of India in
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1999 (hereinafter referred to as the Policy for Waiver )
and further whether the two can be harmoniously
construed?
3. For the purposes of clarity and for understanding the
controversy we may briefly re fer to the factual matrix
of both the cases.
WP (C) N O . 7438/2012
4. The petitioner in the present petition was engaged in
the business of trading of mobile phones. The
petitioner imported mobile phones "Made in China" of
different brands of Chinese origin through various bills
of entries dated 06.04.2012. On 17.04.2012, the
Director of Directorate of Revenue Intelligence , Delhi
Zonal Unit, seized the goods on the ground of mis -
declaration. During investigation, it was found that the
address given in the imp ort documents of the
petitioner was incorrect and 2000 pieces of memory
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cards of 4GB capacity were concealed in the mobile
phones.
5. The petitioner challenged the aforesaid seizure and
filed a writ petition in this Court bearing WP(C) No.
2548/2012. By order dated 30.04.2012, this Court
disposed of the said writ petition with a direction to the
respondents to consider the said writ petition as a
representation and to decide the same expeditiously.
6. The Deputy Director of Directorate of Revenue
Intelligence by communication dated 18.07.2012
requested the Commissioner of Customs (Import &
General) to release the goods provisionally on terms
and conditions to be decided at their end. The office
of Commissioner of Customs by its letter dated
05.10.2012 communicated to the petitioner the
decision of the competent authority which had directed
the release of the goods provisionally on execution of
a provisional duty bond guarantee of Rs. 15,00,000/-.
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Pursuant to the direction for release of the goods, the
petitioner approached the Deputy Director of
Directorate of Revenue Intelligence for issuance of
directions to CELEBI to waive off demurrage charges
on the detained goods. By letter dated 06.11.2012,
the Commissioner of Customs advised CELEBI to
waive of the detention charges in terms of Regulation
6(1)(l) of HCCA R.
7. Despite the letter dated 6.11.2012, CELEBI refused to
waive off the demurrage/detention charges and thus,
the petitioner filed the present petition seeking waiver
of the said charges in terms of the dire ction/advise
issued by the customs authorities by letter dated
06.11.2012.
WP(C) No. 2200/2013
8. The petitioner in this petition is engaged in the
business of import and trading of perfumes and other
brand accessories. The petitioner imported branded
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perfumes and accessories and filed the bill of entry for
home consumption dated 08.05.2012. The
consignment was intercepted and examined by the
office of Special Intelligence and Investigation Branch
of the customs authorities and panchnama was drawn
on 15.05.2012.
9. After the examination, the consignment was handed
over to CELEBI under superdginama dated
15.05.2012. The Superdginama was executed by one
Mr. Anand Prasad working as Cargo Agent in CELE BI
(the custodian). The superdginama records that "I
shall not claim any storage charges for the safe
custody of the goods".
10. The customs authorities confiscated the said goods
under Section 111 of the Custom Act under a seizure
memo dated 11.07.2012 on the ground of under
valuation. The adjudicating authority by order dated
19.07.2012 confirmed the duty of Rs. 10,48,803/- and
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imposed penalty of Rs. 2,00,000/- on the partner of the
petitioner firm. The petitioner was given an option to
redeem the goods on payment of redemption fine of
Rs. 5,00,000/-. Penalty of Rs. 2,00,000/- was also
imposed on the customs house agent of the petitioner
firm.
11. The petitioner appealed against the said order before
Commissioner of Customs (Appeals). The
Commissioner of Customs (Appeals) by order dated
25.09.2012 reduced the redemption fine to Rs.
75,000/- and penalty to Rs. 35,000/-. The petitioner
accepted the order of the Commissioner of Customs
(Appeals) and deposited the penalty as well as the
redemption fine on 01.12.2012. The petitioner further
sought to deposit the customs duty, however, it is
contended that the Customs Authorities delayed the
process and prevented the petitioner from depositing
the same. It is contended that the customs authorities
delayed the deposit of the customs duty on the ground
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that amended bill of entry was not ready. On
08.03.2013, i.e. after five months of the deposit of the
penalty and redemption fine, the petitioner was
directed to deposit Rs. 12,86,196/- under the heading
"Customs Duty" which duty is stated to have been
deposited on the same da y.
12. On 11.03.2013, the petitioner requested the customs
authorities to direct CELEBI to release the said
consignment without payment of any demurrage
charges. By order dated 12.03.2013, the
Commissioner of Customs, directed CELEBI not to
charge any rent or demurr age in terms of its HCCA R,
2009.
13. The CELEBI did not accede to the request of the
petitioner and the direction of the customs authorities
and directed the petitioner to pay charges amounting
to Rs. 71,14,065/- vide their "Receipt of Processing
Charges" dated 15.03.2013. The petitioner protested
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against the said demand and on failure of the
respondents to waive of the demurrage charges filed
the present writ petition.
14. The stand of the respondent CELEBI is that it is bound
by the policies, instructions, guidelines, circulars,
notifications and regulations formulated by Ministry of
Civil Aviation or Airport Authority of India or AERA and
it is not bound by any contrary regulations of the
Customs department with respect to waiver of any
charges levied by CELEBI. As per the policy
formulated by AAI no waiver of any charges has to be
granted in cases any fine/penalty/personal
penalty/warning is imposed by the customs authorities.
15. The respondent DIAL has further contended that the
regulations framed by the custom s authorities stipulate
that the same are subjected to any other law for the
time being in force and such are subject to the policy
framed by the AAI which policy was framed in 2003
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and Regulations came into force in 2009 and as such
in terms of said policy, no waiver can be granted.
16. The respondent, customs authorities, have relied on
regulation 6(1)(l) of HCCA R and supported the case of
the petitioner s and has contended that in a case
covered by the said regulations no
detention/demurrage charges are levi able and more so
in view of the fact that there is a direction issued by
any customs authorities to CELEBI to waive of the
said charges.
17. Learned counsel for the petitioner has contented that
in similar circumstances, CELEBI and AAI have
waived of the charges where customs authorities have
so directed in terms of the regulations. Learned
Counsel for the respondent CELEBI has contended
that the waiver has been granted on case to case
basis.
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18. In WP(C) No. 2200/2013, respondent customs
authorities filed an affidavit and stated that DIAL was
appointed as custodian o f import/export cargo in place
of AAI vide customs public notice dated 02.05.2006.
DIAL entrusted CELE BI the custody of the said area.
The respondent, customs authorities, further stated
that DIAL and CELEBI were allowed to carry on cargo
handling service on a specific undertaking that they
would abide by the conditions of HCCA R, 2009. The
affidavit further states as under:-
"10. That it is evident from the facts and legal
provisions sated above that Respondent No.4
(CELEBI) has acted contrary to the provisions of
law in as much as demurrage incurred for the
period of detention/seizure by Customs should
have been waived off by respondent No.4 as
directed by the answering respondent vide
letter C. No.VIII/SIIB/CUS/I&G/40/2012 dated
14.3.2013. Therefore the action of Respondent
No.4 (CELEBI) to not to allow the clearance of
the shipment without the payment of
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demurrage charges is contrary to the
provisions of Notification No.26/2009-Cus
(N.T.) dated 17.03.2009 named as Handling of
Cargo in Customs Area Regulation 2009 who
has undertaken to comply with the provisions
of Regulations 2009 under condition 5 & 6 of
the said regulation.
11. It is further submitted that the Customs
Department inserted condition of not charging
demurrage on detained/seizure goods on
Superdginama while handing over the goods to
Respondent No.4 (CELEBI) for safe keeping till
adjudication of the case or produce the goods
whenever called upon by the Customs in
exercise its powers under the Handling of
Cargo in Customs Area Regulation 2009."
19. For the purposes of elu cidation and understanding the
real controversy, it is necessary to examine various
statutory provisions, regulations and policies briefly .
20. Section 2 Sub Section 11 of the Customs Act, 1962
defines Custom s Area as under:
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"customs area" means the area of a customs
station and includes any area in which
imported goods or export goods are ordinarily
kept before clearance by Customs Authorities."
21. Section 2 Sub Section 43 of the Customs Act, 1962
defines Warehouses as under:
"warehouse" means a public warehouse
appointed under Section 57 or a private
warehouse licensed under section 58"
22. Section 2 Sub Section 44 of the Customs Act, 1962
defines Warehouse d goods as under:
"warehoused goods" means goods deposited in
a warehouse;"
23. Section 45 of the Customs Act, 1962 dealing with
restrictions on custody and removal of imported goods
reads as under:
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
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shall remain in the custody of such person as
may be approved by the 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 proper officer.
(3) Notwithstanding anything contained in any
law for the time being in force, if any imported
goods are pilfered after unloading thereof in a
customs area while in the custody of a person
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referred to in sub-section (1), that person shall
be liable to pay duty on such goods at the rate
prevailing on the date of delivery of an import
manifest or, as the case may be, an import
report to the proper officer under section 30
for the arrival of the conveyance in which the
said goods were carried.
24. Section 45 of the Customs Act, 1962 stipulates that all
imported goods unloaded in the customs area shall
remain in the custody of a person approved by the
Commissioner of Customs till the time they are cleared
for home consumption or warehouse d or transhipped
in accordance with Chapter VIII whic h deals with
goods in transit. The person to whom the custody of
such goods is handed over by the Commissioner of
Customs is liable to keep record of the same and keep
the same in the customs area and not to permit
removal of the same except with prior permission and
in case of any pilferage etc. the said person is liable to
pay duty on the said goods.
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25. Section 49 of the Customs Act, 1962 lays down as
under:
"49. Storage of imported goods in warehouse
pending clearance.-- Where in the case of any
imported goods, whether dutiable or not,
entered for home consumption, the Assistant
Commissioner of Customs or Deputy
Commissioner of Customs is satisfied on the
application of the importer 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.
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26. Section 57 and 58 of the Customs Act, 1962 lay down
as under:
"SECTION 57. Appointing of public
warehouses. - At any warehousing station, the
Assistant Commissioner of Customs or Deputy
Commissioner of Customs may appoint public
warehouses wherein dutiable goods may be
deposited.
SECTION 58. Licensing of private
warehouses. - (1) At any warehousing station,
the Assistant Commissioner of Customs or
Deputy Commissioner of Customs may license
private warehouses wherein dutiable goods
imported by or on behalf of the licensee, or
any other imported goods in respect of which
facilities for deposit in a public warehouse are
not available, may be deposited.
(2) The Assistant Commissioner of Customs
or Deputy Commissioner of Customs may
cancel a licence granted under sub-section (1) -
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(a) by giving one month's notice in writing to
the licensee; or
(b) if the licensee has contravened any
provision of this Act or the rules or regulations
or committed breach of any of the conditions
of the licence :
Provided that before any licence is cancelled
under clause (b), the licensee shall be given a
reasonable opportunity of being heard.
(3) Pending an enquiry whether a licence
granted under sub-section (1) should be
cancelled under clause (b) of subsection (2),
the Assistant Commissioner of Customs or
Deputy Commissioner of Customs may suspend
the licence."
27. Under Section 49, the Customs Authorities on an
application of the importer, if satisfied, that the
goods entered for home consumption cannot be
cleared within a reasonable time, perm it the
importer to deposit the goods in a public area or
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a private warehouse for a specified period. The
period may be extended from time to time by the
Commissioner of Customs. Section 49 further
stipulates that goods so warehouse d on an
application by the importer shall not be deemed
to be warehoused goods for the purposes of this
Act and provisions of Chapter IX shall not apply.
Section 57 lays down that the Assistant
Commissioner/Deputy Commission of Customs
may appoint public warehouse s wherein dutiable
goods may be deposited. Section 58 empowers
the Assistant/Deputy Commissioner of Customs
to licence private warehouses wherein dutiable
goods imported may be deposited where the
facilities for deposit in a public warehouse are
not available. Section 59 to 73 of Chapter IX
deal with the general provisions under which an
importer may warehouse the imported goods and
stipulates the period for which the goods may be
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warehoused and general conditions for removal /
clearance of the goods.
28. Section 141 of the Customs Act, 1962 lays down as
under:
"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.
29. Section 141 of the Customs Act, 1962 stipulates that
the conveyances and goods in a customs area are
subjected to the control of the officers of customs and
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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.
30. The above noted sections of the Customs Act
postulate a scheme or a procedure whereby goods
which are imported into a customs area immediately
come into the control and power of the officers of the
customs. 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.
Under certain circumstances, the customs authorities
may permit storage of imported goods in a warehouse
pending clearance on a application by the importer ,
where goods cannot be cleare d within a reasonable
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time (Section 49) or warehoused in a public or private
warehouse (Section 60, 61).
31. The Regulation 6(1)(l) of HCCA R lays down as under:
8. Responsibilities of Custom Cargo Service provider:
(1) The Custom Cargo Service provider shall:-
(a) ....
.......
(l) 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 prop erty
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.
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33. Under the provision of the AAI Act, AAI is empow ered
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, construction, upgradation, modern isation,
finances and managing the airport to the Delhi
International Airport Private Limited, (DIAL for short)
under the operation, management and developing
agreements (OMDA) dated 4.4.2006 which agreement
further empowers DIAL to sub contract any activity
covered by OM DA.
34. The Government of India formulated Airports
Economic Regulatory Authority of India (AERA for
short) under the Airport Economic Regulatory
Authority of India Act, 2008 . The AERA was given the
responsibility of providing and fixing demurrage
charges in respect of storage, processing and
handling of Cargo at the terminal.
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35. By concession agreement dated 24.8.2009, CELEBI
has been grated sub-contract by DIAL for the
purposes of upgradation, modernisation, finances,
operation and maintenance and management and for
providing service at the Cargo Terminal of the said
airport. CELEBI handles Cargo at the terminal and
provide service relating to processing, storage and
follows the instructions, guidelines, circulars and
notifications formulated b y Ministry of Civil Aviation.
CELEBI collects charges as per the orders, directions,
policies, guidelines and regulations formulated by
Ministry of Civil Aviation, AERA, AAI, and pays the
same to DIAL and DIAL in turn pays the same to AAI.
36. The AAI has framed regulations in exercise of powers
conferred under the AAI Act. The regulations relied
upon by the respondent CELE BI as applicable to the
present case are the Airports Authority of India
(Storage and Processing of Cargo, Courier a nd
Express Goods an d Postal Mail) Regulations, 2003
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(hereinafter referred to as, „the Regulation‟). As per
the said Regulation, the Airport Authority fixes the
charges for processing of the Cargo and also
formulates Policy for Waiver of such demurrage
charges. The relevant portion of the policy relating to
waiver of demurrage charges (Cargo) lays down as
under:
"10.1 GENERAL
10.1.1 Subject to such policy, rules and
procedures as may be described the authorities
specified hereunder are authorised to sanction,
in consultation with the Finance and Accounts
Department, remission/waiver of demurrage
charges regarding Cargo Operation.
10.1.2 ....
.......
10.1.10 Demurrage charges shall not be
waived where:
(a) Any fine/penalty/ personal penalty/warning
is imposed by the Customs Authority.
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(b) Delay arose by reason of dispute in the
assessable 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
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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
shall be received, sto red, delivered or otherwise
handled in a customs area. The regulations also
prescribe the responsibilities of the persons engaged
in aforesaid activities.
40. The custom authorities are concerned with the
receiving, storing, delivering and handling of cargo in a
custom area. The custom authorities are not
concerned with the upgradation, modernisation,
finances, operation and maintenance and
management and provision of services at the Cargo
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Terminal of the Airport, which is the function of the
AAI. The custom au thorities are also not concerned
with the responsibility of providing and fixing
demurrage charges in respect of storage, processing
and handling of Cargo at the terminal, which
responsibility is of the AERA.
41. The Regulations of the AAI of which the Policy for
Waiver of demurrage charges is a part specifically
deals with the Storage and Processing of Cargo,
Courier and Express Goods and Postal Mail . The
Airport Authority fixes the charges for processing of
the Cargo and has thus formulated the Policy for
Waiver of such demurrage charges.
42. The custom authorities it appears issues certificate for
waiver in every type of case irrespective of the fact
whether the importer is at fault or not. The custom
authorities have issued certificate for waiver of the
demurrage charges in both the cases at hand. In one
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case the release of the goods are on provisional basis
pending adjudication and in the other there is
imposition of both fine and penalty. These are not
cases where the importer has been held to be not at
fault. In one case the Importer has been found to be at
fault and penalty and fine imposed. The importer has
accepted the said order. In the other case adjudication
proceedings are pending and are yet to be finalised.
43. There is an 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 mis-declaration, mis-description, under
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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
warning imposed by the customs authorities CELE BI
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,
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penalty, personal penalty and/or warning has been
imposed by the customs authorities. Even in cases of
mis-declaration, undervaluation and concealment, the
certificates a re 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 treated equally.
47. In cases where th e importer is found innocent and
there is no imposition of any fine, penalty, personal
penalty 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 custom authorities. The importer
would not be automatically exempt but would be
covered under the Policy for Waiver and eligible for
waiver which would be granted subject to other
compliances.
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48. The execution of the superdginama by CELEBI that it
would not claim any storage charges for the safe
custody of the goods charge would also not be in
conflict with the Policy for Waiver . The Policy has been
framed by the Airports Authority of India and the
execution of the Superdginama by an employee would
not override the policy. It would be applicable in cases
where no fine, penalty, personal penalty and/or
warning is imposed by the customs authorities . In
cases where the importer is found eligible for the
benefit of the Policy, the Superdginama would
automatically become applicable.
49. Where the importer is clearly at fault and fine, penalty,
personal penalty and/or warning is imposed by the
customs authorities, making the regulations applicable
and granting the benefits of waiver would be clearly
unreasonable and would grant benefit of waiver, with
the person who has provided space suffering . This
was and is not the intention and purpose behind
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HCCA R. Regulation recognises and accepts that any
other law in force is not abrogated or repealed . The
existing provision applicable stands protected.
50. To sum up:
(1) In cases where on conclusion of the
adjudication proceedings there is no imposition
of any fine, penalty, personal penalty and/or
warning by the customs authorities:
(i) the Policy for Waiver would be
applicable; and
(ii) the importer would be entitled to be
considered for its benefit when the
goods were seized, detained or earlier
confiscated; and
(iii) waiver would be granted subject to other
compliances.
(2) In cases where pending the adjudication
proceedings, provisional release order is issued
and a certificate is issued by the custom
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authorities, the goods would be released
subject to furnishing of bond and/or security as
may be prescribed that in case any fine,
penalty, personal penalty and/or warning is
imposed by the customs authorities, the
Importer would pay the demurrage charges.
51. In WP (C) No. 7438/2012 since the good s have been
directed to be released on provisional basis pending
the adjudication 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
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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.
SANJEEV SACHDEVA, J.
MARCH 28, 2014 SANJIV KHANNA, J.
SV
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