Gujarat High Court
A.K. Enterprises Through Its Prop. ... vs Principal Commissioner Of Customs on 9 April, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2460 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
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Approved for Reporting Yes No
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A.K. ENTERPRISES THROUGH ITS PROP. MOHAMED AFAQ MOHAMED
HASEEN KHANUBEGWALA
Versus
PRINCIPAL COMMISSIONER OF CUSTOMS & ORS.
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Appearance:
AADITYA D BHATT(8580) for the Petitioner(s) No. 1
CHANDNI S JOSHI(9490) for the Petitioner(s) No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 1,2
NIMIT Y SHUKLA(8338) for the Respondent(s) No. 4
NOTICE SERVED BY DS for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR.JUSTICE D.N.RAY
Date : 09/04/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE BHARGAV D. KARIA)
1. Leave to amend.
2. Heard learned advocate Mr. Aditya Bhatt
for the petitioner, learned advocate
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and learned advocate Mr. Mohammad Rafiq
for learned advocate Mr. Nimit Shukla for
respondent No.4.
3. By this petition under Articles 226 and
227 of the Constitution of India, the
petitioner has prayed for the following
reliefs:
"A. Your Lordships may be pleased
to direct Respondent No.1 and
Respondent No.2 to take 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
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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
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waive off the
detention and demurrage charges if
any, in view of
regulation 6 (1) (1) of the Handling
of Cargo in Customs
Area Regulation 2009 and Regulation
of 10 (1) (l) Sea Cargo Manifest
Regulation, 2018;.
D. Pending admission, hearing and
final disposal of this petition,
Your Lordships may be pleased to
direct the Respondents to effect
physical delivery of the goods upon
any other condition, since the
petitioner has limited funds for the
smooth functioning of the business
and since 1.5 months the goods are
kept within the possession of
respondent No.4 which is resulting
into loss;
E. An ex parte ad interim relief in
terms of prayer (B) above may be
granted; and
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F. To pass any other appropriate and
just order/s as may be deemed just
and proper in the interest of
justice;"
4. Having regard to the controversy involved
which is in narrow compass, with the
consent of the learned advocates for the
respective parties, the matter is taken up
for hearing.
5. Rule returnable forthwith. Learned
advocates for the respective parties for
respondents waive service of notice of
rule.
6. Brief facts of the case are that:
6.1 The petitioner is engaged in the
business of Trading Soda Ash Dense
Industrial Grade (HSN 28362010). It is the
case of the petitioner that the shipping
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line engaged respondent No.4 as delivery
agent to unload the containers at the
premises of the petitioner. The Bill of
Lading No. ACLGEAMUN1250924 dated
16.12.2024 by one Allied Container Line as
an agent of the carrier where name of the
respondent No.4 is stated as delivery
agent.
6.2 It is the case of the petitioner
that during the course of business, it has
imported the goods i.e. Soda Ash Dense
vide Bill of Entry No. 738842 dated
21.12.2024 through a warehouse at Mundhra
CFS.
6.3 It is the case of the petitioner
that the goods in question were detained
by the Custom Authorities for
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verification/examination on 21.12.2024 and
thereafter, by letter dated 10.01.2025, it
was informed to the Deputy Commissioner,
DOCKS Examination, Custom House, Mundra by
the Deputy Commissioner (SIIB), Custom
House, Mundra, that the import covered
under the Bill of Entry No. 7388842 dated
21.12.2024 in respect of the goods of the
petitioner was put on hold and based on
the examination report submitted by Docks
Examination, CH, Mundra, the said cargo
has been found as declared and the goods
may be released after completion of due
customs procedure as prescribed under the
Customs Act,1962 and other allied Acts and
the Rules wherever possible.
6.4 It appears that thereafter, on
17.01.2025, respondent No.2-Deputy
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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 til 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
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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 20.01.2025 with the proforma
invoice for the subject shipment along
with the list of documents to be submitted
for the delivery order to be issued.
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6.8 The petitioner therefore, through
its Customs House Agent by Email dated
24.01.2025 again requested for waiver of
the detention charges by implementation of
the waiver certificate which was replied
by respondent No.4 on the same day stating
that reply from the Port of Loading is
awaited.
6.9 The petitioner thereafter again by
Emails dated 28.01.2025, 29.01.2025 and
30.01.2025 through its Customs House Agent
enquired about the status of waiver from
respondent No.4. However, the same reply
was given by respondent No.4 that they are
awaiting reply from the Port of Loading
but the same has not yet received any
waiver Email by them.
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6.10 The petitioner, therefore, by
letter dated 03.02.2025, requested
respondent No.2 to look into the matter
and direct the shipping line to release
the containers alongwith goods.
As no action is taken by either of the
respondents, the petitioner has filed this
petition with the aforesaid prayers.
7. Learned advocate Mr. Aditya Bhatt for the
petitioner submitted that the waiver
letter dated 17.01.2025 is binding upon
respondent No.4 and the respondent cannot
ignore such waiver letter issued by
respondent No.2 as the respondent No.4 is
a delivery agent of the shipping line and
is therefore, an authorized sea agent of
the shipping line which is authorized Sea
Carrier and therefore, as per the
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Regulations, 2018, the respondent No.4 is
bound by the waiver letter issued by
respondent No.2 to deliver the Cargo to
the petitioner.
7.1 It was submitted that the
contention raised on behalf of the
respondent in the affidavit-in-reply that
respondent No.4 has not acted as
Authorized Sea Carrier and therefore, the
Regulations, 2018, are not tenable, is
contrary to the contention raised by
respondent Nos. 1 and 2 in the affidavit-
in-reply wherein, it is categorically
stated that respondent No.4 is bound by
the Regulations, 2018 and accordingly, the
petitioner is entitled to delivery of the
goods after waiver of the detention
charges for the period from 24.12.2024
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till 10.01.2025 as per the waiver letter
dated 17.01.2025.
8. Learned advocate Mr. Mohammad Rafiq with
learned advocate Mr. Nimit Y. Shukla for
respondent No.4 submitted that the
respondent No.4 is a delivery agent of the
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
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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)0) of the Sea
Cargo Manifest and Transhipment
Regulations, 2018 (SCMTR) legally
binding on Respondent No. 4?
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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"? under 2(d) of SCMTR, 2018 is
given below for ready reference:
"2(1)(c) Authorised Carrier means an
authorised sea carrier, authorised
train operator or a custodian,
registered under regulation 3 and
postal authority
2(1)(d). Authorised 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."
4.1.2. Since the Respondent No. 4 is
not "Authorised Carrier", the
regulation 10 (1) Q) is not applicable
to this Respondent. Regulation 10 (1)
(1) reads as follows;
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"The Authorised Sea Carrier shall
not charge any container detention
charge for the containers lade, with
the goods detained by customs for
the 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 demand, container detention
charges for the period commencing
after expiry of sixty days"
4.1.3. An authorised sea carrier
defined under Regulation 2(1)(d) has
to be : (i) Master of the vessel or
their agent; and (ii) Any person
notified by the Central Government.
Regulations 3(1) and 3(1)(A) provide
for the registration of authorized sea
carriers and other notified persons,
Tespectively. Respondent No. 4 is not
a registered person under Regulation
3(1) or 3(1)(A). Their role in the
import transaction was limited to
acting as an agent for the overseas
NVOCC, not as an agent for the master
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of the vessel responsible for filing
the arrival manifest or IGM.
4.1.4. Respondent No. 4 acted only as
the Indian agent of a Non-Vessel
Operating Common Carrier (NVOCC) (fie,
M/s Allied Container Line) is just a
container operator and not a vessel
operator. As the principal of
Respondent No. 4 has not operated
vessels (M/s. MV VIRA BHUM - 120E), in
this case, and that Import General
Manifest for the Vessel was filed by
the legally appointed third party
agent of the vessel operator,
Respondent herein is not "Authorized
Sea Carriers," and hence are not bound
by Regulation 10(1)(l)of the SCMTR,
2028. Consequently, the waiver
certificate issued by the department
under this regulation is not binding
upon Respondent No. 4 or their
principal.
4.1.5. The objective of the SCMTR,
2018 is to modernise and regulate the
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Import & Export Manifest to be filed
by the conveyance or their agents. The
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
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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 the
Petitioner is under the Code of Civil
Procedure, 2908 or any law for the
time being in force.
5.2 The contract of carriage
constitutes a contract of bailment,
entitling this respondent to exercise
its contractual lien (on behalf of its
principal) on the imported goods for
the charges payable for the services
rendered, in accordance with the
agreed tariff, supported by Section
170 of the Indian Contract Act.
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5.3 This Respondent had no notice
or information about the alleged
"wrong entry" made by the Petitioner
while filing their Bill of Entry (BOE)
on the import of goods. As per Section
46 of the Customs Act, 1962, the
importer of the goods is bound to make
the "entry" thereof by presenting to
the proper officer a bill of entry for
home consumption or warehousing. Since
the Petitioner herein has made the
entry, the responsibility of making a
"wrong entry" shall also rest upon the
importer and not on the agent of the
NVOCC who has provided the containers
for export.
5.4 As per Section 30 of the
Customs Act, 1962, the "Person in
charge of a vessel" is responsible for
filing the Import General Manifest
(IGM) on arrival of the conveyance. In
the present case, as evident from
records, the conveyance (vessel)
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carried the 20x20' DC containers, vide
B.L. No. ACLJEAMUN1250924, dated
16.12.2024 is M/s. MV VIRA BHUM
(1220E), which has been handled by
their Indian agent M/s. RCL Agencies
(India) Pvt. Ltd. The IGM for the said
container has been filed by M/s. RCL
Agencies (India) Pvt. Ltd on behalf of
the conveyance and hence Respondent
No. 4 is not the person in charge of
the conveyance, who is responsible for
filing the IGM.
5.5 The Petitioner has also failed
to prudently make use the benefit of
Section 49 of the Customs Act, which
is beneficially made for the importers
for bonding the goods and to release
the empty containers during any
pending investigation, indicates a
lack of prudent action to mitigate
losses and failure to avail lawful
waiver provisions. Thus, the pursuit
of the detention certificate was an
afterthought.
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5.6 The following clauses as per
the terms and conditions of the
contract of carriage, i.e, the Bill of
Lading. B/L. no. ACLJEAMUN1250924
dated 16.12.24 are crucial to be
quoted:
"Clause 1. "Merchant means and
includes the shipper, the
consignor, the holder of this Bill
of Lading, the receiver and the
owner of the goods.
18. Freight 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
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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. UOI {(1985) 1
SCC 641] and Council af Architecture
v. Mukesh Goyal [(2020) 16 SCC 446].
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In Council of Architecture v. Mukesh
Goyal {(2020) 16 SCC 446]:
"75. In India arbitrariness is not
a separate ground since it will
come within the embargo of Article
14 of the Constitution. In India,
any enquiry into the vires of
delegated legislation must be
confined to the grounds on which
plenary legislation may be
questioned, to the ground that it
is contrary to the statute under
which it is made, to the ground
that it is contrary to other
statutory provisions or that it is
so arbitrary that it could not be
said to be in conformity with the
statute or that it offends Article
14 of the Constitution."
8.3 It was further submitted that as
per the sequence of events of the
transactions in question, reliance was
placed on the following averments in the
affidavit-in-reply:
"6.4 From the sequences of events,
the following notable points emerge;
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i. The Petitioner failed to file the
BOE in advance,even though filing of
BOE is permitted 30 days in advance as
per S.46 of the Customs Act, 1962.
ii. The goods were found as declared
as per the Docks Examination on
21.12.24 itself.
iii. The reason for not clearing the
goods from 21.12.24 till 02.01.25 is
not explained.
iv. Though a conditional commercial
waiver was given to the Petitioner,
they failed they failed to comply and
return the empty containers to the
this Respondent.
6.5. Since the Petitioner failed to
return all the 20x20' empty containers
to this Respondent within the agreed
14 free days, and the said container
was lying at the customs bonded area,
Mundhra CFS, respondent no.3 ("CFS"),
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carrying the goods of the Petitioner
therein, the detention and demurrage
charges have accrued on the said
issued the following invoices seeking
payment of detention charges on the
non-returned container. Copies of the
above-mentioned invoice are annexed
(Colly).
6.6 On 18.01.2025, the CHA bes
provided a copy of the
alleged detention waiver letter to
Respondent No. 4. However, the said
waiver letter was addressed to the CFS
(R3). Though it was miked copy to this
Respondent and to the Petitioner. As
the seed detention waver letter was
addressed to the CFS, though there was
a reference in the body regarding
SCMTR, 2018, the specific direction
for waiver 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
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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-
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-
6.9 On 22.03.2025, by reply to the
above letter, it was clarified by this
Respondent that, exclusively on
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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 be
returned on or before 11.03.2025.
6.10. It was further clarified that
since the goods are still idling at
the CFS in our containers and the
consignee has failed to return the
empty on 11.03-2025 even after a
conditional office, we have decided to
charge a discounted rate @ 25 USD/day/
container towards detention charges
from 12.03.2025 till 31.03.2025. A
copy of the said clarification Email
dated 22.03.2025 is annexed and marked
hereto as Exhibit-7."
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8.4 Referring to the above averments
it was submitted that respondent No.4 is
contractually entitled to collect the
detention charges agreed and not bound to
comply with the waiver letter on the
ground that the respondent No.4 is not the
Authorized Sea Carrier under the
Regulations, 2018.
8.5 It was submitted that Regulation
10(1)(l) of the Regulation,2018 are also
ultra vires to the provision of the
Customs Act,1962 as no provision of the
Customs Act provides for waiver of the
detention charges for the containers laden
with the goods detained by the Customs for
the purpose of verifying the entries. In
support of his submissions, reliance was
placed on the decision of the Apex Court
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in case of Indian Young Lawyers
Association and others vs. State of Kerala
and ors reported in (2019) 11 SCC page 1.
8.6 It was therefore, submitted that
the waiver letter dated 17.01.2025 cannot
be made applicable to the respondent No.4
for recovery of the detention charges of
the containers as the respondent No.4 is
not covered by the Regulations,2018. The
petitioner is therefore, liable to pay
detention charges for the delivery of the
goods in question.
9. Learned advocate Mr. Ankit Shah for
respondent Nos. 1 and 2 submitted that
respondent No. 2 has issued waiver letter
dated 17.01.2025 as per the Regulation
10(1)(l) of the Regulations,2018. It was
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submitted that letter dated 11.03.2025 of
respondent No.4 is contrary to the
Regulations, 2018 as the respondent No.4
is bound by the Regulations, 2018. In
support of his submissions, reliance was
placed on the following averments made in
the affidavit-in-reply filed on behalf of
respondent Nos.1 and 2:
"10. With regards to reference to
Counter Affidavit submitted by M/s.
WINWIN Maritime Limited, Respondent
No. 4, wherein they have questioned
the applicability of Regulation 10(1)
() of the Sea Cargo Manifest and
Transhipment Regulations, 2018 (SCMTR,
2018) to them 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
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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.
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(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
regulations applicable to an
Authorised Sea Carrier under SCMTR,
2018.
13. That the assertion that the waiver
letter issued under Regulation 10(1)
(l) is not binding on them is
untenable in light of their
registration as an ASA under SCMTR,
2018.
14.Further it is submitted that, M/s.
WinWin Maritime Limited, in their
letter dated 17.03.2025, had stated
that they had waived all detention
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charges till 02.03.2025, based on the
waiver request letter issued by SIIB.
This is an acknowledgement of the
regulatory framework and acceptance
of the fact that they are under its
purview. Thus, the
contention of M/s. WinWin Maritime
Limited, is not acceptable.
15.In view of the above, it is
evident that M/s. WinWin Maritime
Limited, is bound by all the
provisions of SCMTR, 2018, including
Regulation 10(1)(l). The waiver
letter issued under Regulation 10(1)
(l) of SCMTR, 2018 is therefore
binding upon M/s. WinWin Maritime
Limited. The contentions raised by
the M/s. WinWin Maritime Limited, are
based on an erroneous interpretation
of SCMTR, 2018 and should be rejected
outright."
9.1 Referring to the above averments,
it was submitted that respondent No.4 is
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bound by the waiver letter dated
17.01.2025 and accordingly, respondent
No.4 is required to deliver the Cargo to
the petitioner without claiming the
detention charges from 24.12.2024 till the
date of issuance of NOC dated 10.01.2025.
9.2 Learned advocate Mr. Ankit Shah
also invited attention of the Court that
respondent No.4 is registered as an
Authorized Sea Agent with the Customs
Department and a reference was made to the
report of inquiry for SMTR registration
Annexure E) which shows that respondent
No.4 is registered as Authorized Sea Agent
(ASA) and such registration was approved.
It was therefore, submitted that
respondent No.4 having been registered as
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Authorized Sea Agent is bound by
Regulations, 2018.
10. Having heard learned advocates for the
respective parties and considering the
facts and material of case, it would be
germane to refer to the relevant
provisions of the Regulations,2018 which
read as under:
"2 Definitions.-(1) In these
regulations, unless the context
otherwise requires,
(c) "authorised carrier" means an
authorised sea carrier, authorised
train operator or a custodian,
registered under regulation 3 and
postal authority;
(d) "authorised sea carrier" means the
master of the vessel carrying imported
goods, export goods and coastal goods
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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
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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
issued by a Nationalised bank for an
amount of ten lakh rupees.";
(2) Where the jurisdictional
Commissioner of customs is satisfied
with the information provided by the
applicant in the Form-I, he shall
register such applicant for
transacting business under these
regulations for a period of three
years from the date of issue of such
registration."
"10. Responsibilities of the
authorised carrier under these
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regulations. - (1) An authorised
carrier shall:-
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;
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 demand, container
detention charges for the period,
commencing after expiry of sixty
days."
"11. Suspension of operations or
revocation of registration of an
authorised carrier. -
(1) The jurisdictional Commissioner of
Customs may revoke the registration of
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the authorised carrier, for failure to
comply with any provisions of the
regulations.
(2) The Commissioner of Customs of any
customs station on reasonable belief
that operations of such authorised
carrier is detrimental to the interest
of revenue, may suspend their
operation in his jurisdiction by an
order stating the grounds of
suspension.
(3) The Commissioner of Customs shall,
within fifteen days from the date of
such suspension order, shall give an
opportunity of hearing to the person
and pass such order within fifteen
days from the date of the said
hearing, as he deems fit, either
revoking the suspension or continuing
it for a further period not exceeding
ninety days from the date of
suspension, as the case may be.
Provided that where the suspension
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against the authorised carrier has
been continued, the Commissioner of
Customs concerned shall intimate to
the jurisdictional Commissioner of
Customs, about the order within
fifteen days from the date of issue of
such order."
.... .... ...
"13. Imposition of Penalty. -An
authorised carrier who contravenes any
provision of these regulations shall
be liable to a penalty which may
extend to rupees fifty thousand."
11. On perusal of the above Rules which are
framed in exercise 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
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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.
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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 to
Goods in Transit. Therefore, on conjoint
reading of the provisions of the Customs
Act,1962 the Regulations were framed for
the requirements of import and export of
the goods by the vessels.
13. As per the provisions of the Regulations,
2018, the 'Authorized Carrier' means an
Authorized Sea Carrier, authorized train
operator or a custodian, registered under
Regulation 3 and postal authority.
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Respondent No.4 is registered under sub-
regulation (3) as Authorized Sea Agent
which is apparent from the inquiry made by
respondent Nos. 1 and 2 on the portal of
the regulation [Annexure E Page 98].
Therefore, the contention of the
respondent No.4 that the Regulations are
not applicable to respondent No.4 cannot
be accepted. The contention raised on
behalf of respondent No.4 that the
respondent No.4 is only a delivery agent
appointed by authorized Sea Carrier as per
the definition of section 2(1)(d),
respondent No.4 is neither the authorized
Carrier nor Authorized Sea Carrier nor an
authorized train operator or a custodian
as defined under section 2(1)(e) and 2(1)
(f) and therefore, the Regulations are not
applicable to the respondent No.4 who is
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only the owner of the containers and was
asked to deliver the goods to the
petitioner as a delivery agent of the
Authorized Sea Carrier and therefore, the
contention that, the impugned waiver
letter dated 17.01.2025 is not binding
upon the respondent No.4, is not tenable
in view of the fact that respondent No.4
is already registered as an Authorized Sea
Agent and was an agent of the Authorized
Sea Carrier who has filed the Bill of
Lading in question. The contention raised
on behalf of respondent No.4 with regard
to challenge to the vires of Rule 10(1)(l)
also cannot be considered in these
proceedings as respondent No.4 has not
challenged the legality and validity of
waiver letter dated 17.01.2025 before any
forum. Therefore, the provision of
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Regulation 10(1)(l) of Regulations, 2018
makes it clear that the Authorized Carrier
is not permitted to demand any container
detailed charges if the containers are
detained by the customs for the purpose of
verifying the entries made under section
46 and section 50 of the Act, if the
entries are found to be correct. In the
facts of the case by letter dated
10.10.2025, respondent No.2 has granted No
Objection Certificate for release of the
goods as the Bill of Entry was 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.
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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
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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 have not
expressed any opinion in respect of any
such proposed proceedings. The petition is
accordingly disposed of.
(BHARGAV D. KARIA, J)
(D.N.RAY,J)
JYOTI V. JANI
