Madras High Court
M/S.Isha Exim vs The Commissioner Of Customs on 1 July, 2021
W.P.No.26838 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :01.07.2021
CORAM
THE HON'BLE MR.JUSTICE S.M.SUBRAMANIAM
W.P.No.26838 of 2018
M/s.Isha Exim,
P-586 Block N, New Alipore,
Kolkata – 700 053, Rep.by its
Proprietor Shri Prabal Kumar Kundu ...Petitioner
Vs
1.The Commissioner of Customs,
Chennai II Commissionerate,
Custom House, No.60, Rajaji Salai,
Chennai – 600 001.
2.The Additional Director General,
Directorate of Revenue Intelligence,
No.27, G.N.Chetty Road,
T.Nagar, Chennai – 600 017.
3.The Deputy Commissioner of Customs,
Group – II, Chennai II Commissionerate Custom House,
No.60, Rajaji Salai, Chennai – 600 001.
4.The Manager, APL (India) Private Ltd.,
New No.8, Old No.15, Whannels Road, Egmore,
Chennai – 600 008. ... Respondents
PRAYER : Writ Petition filed Under Article 226 of the Constitution of
India to issue of Writ of Mandamus, directing the respondents, to cause
1
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refund of an amount of Rs.20,57,526.72 collected by M/s.APL India
Pvt.Ltd., Chennai, as container Detention Charges, in blatant violation of
the Detention / Demurrage Waiver Certificate dated 27.10.2017, issued by
the 3rd respondent in F.No.S49/340/2017-Gr.1 in terms of Regulation 6 (1)
(l) of Handling of Cargo in Customs Areas Regulations 2009.
For Petitioner : Mr.B.Satish Sundar
For Respondents : Mrs. R.Hemalatha,
Senior Panel Counsel for R1 & 3
Mr.V.Sundareswaran,
Senior Panel Counsel for R2
Not Ready in Notice for R4.
ORDER
The relief sought for in the present writ petition is directing the
respondents to cause refund of an amount of Rs.20,57,526.72 collected by
M/s. APL India Pvt.Ltd., Chennai, as Container Detention Charges, in
blatant violation of the Detention / Demurrage Waiver Certificate dated
27.10.2017, issued by the 3rd respondent in F.No.S49/340/2017-Gr.1 in
terms of Regulation 6 (1) (l) of Handling of Cargo in Customs Areas
Regulation 2009.
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2. The petitioner is involved in the business of imports more
particularly import of betelnuts, from overseas. The petitioner states that for
the purpose of the said imports the petitioner is favoured with an Import
Export Code No.0214014525 issued by Office of the Zonal Director
General of Foreign Trade, Calcutta. The petitioner states that during the
course of his business, imported a quantity of 27,000 kgs (net weight) ; of
unflavoured supari from M/s. PT.V J&J INTERNASIONAL, INDONESIA,
vide Commercial Invoice No.056/VJJI/BN/07/2017 dated 20.07.2017 for an
amount of USD 48600. The said consignment was shipped vide Bill of
Lading No.APLU078459111 by the said supplier. The import was
accompanied by a Certificate of Origin, issued under the ASEAN – India
Free Trade Area, Preferential Tariff, dated 26.07.2017, for import of the
said goods, as well as phytosanitary certificate issued by the Ministry of
Agriculture, Agency for Agriculture Quarantine, Republic of Indonesia
No.0945982 dated 28.07.2017.
3. The petitioner states that on arrival of goods at Chennai Port,
he filed Bill of Entry dated 02.08.2017 for clearance of the goods. The Bill
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of Entry was assessed to duty and out of charge was accorded in respect of
the said Bill of Entry under CTH 21069030, as "unflavoured supari”.
However, for reasons unknown to to the petitioner and best known to the
respondents, despite according out of charge, by the proper Officer of
Customs, the goods have not been permitted to be cleared for home
consumption. The petitioner had paid applicable duties and the Officers of
the Directorate of Revenue Intelligence, attached to the 2nd respondent on
the basis of information and intelligence, that the goods imported by the
petitioner, were misclassified, conducted examination of goods imported by
the petitioners and subsequently the goods were detained. The imported
goods by the petitioner are perishable in nature and also for human
consumption, besides requiring storage in a refrigerated container
considering the perishable nature of the goods, despite such a position, the
goods were detained by the Officer of the Directorate of Revenue
Intelligence.
4. However, pursuant to the orders of this Court in
W.P.No.22114 of 2017 dated 12.09.2017, the goods were released.
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5. As far as the present writ petition is concerned, the learned
counsel for the petitioner reiterated that the petitioner with great difficulty
got the goods released and thereafter initiated steps for refund of the
deposited amount. Pursuant to the directions of the High Court, the
petitioner has furnished Provisional Duty Bond and Test Bond as per the
assessable value. Subsequently, the Deputy Commissioner of Customs in
proceedings dated 27.10.2017 issued Detention / Demurrage Waiver
Certificate, under Rule 6 (1) (l) of Handling of Cargo in Customs Area
Regulations, 2009.
6. The learned counsel for the petitioner reiterated that once a
Detention Certificate is issued under the provisions of the Regulations, then
the 4th respondent has no option but to honour the said Detention Certificate
by making refund of the amount deposited by the petitioner. In the present
case, despite the Detention Certificate, no action has been taken by the 4th
respondent / Service Provider. The petitioner submitted a representation on
15.11.2017 and there was no response from the 4th respondent. Finally, he
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approached the Competent Customs Authority including the Deputy
Commissioner of Customs, to initiate actions under the provisions of
Regulations.
7. The learned counsel for the petitioner made a submission
that under Regulation 5 (5), the Service Provider undertakes to comply with
the provisions and abide by all the provisions of the Act and the rules,
regulations, notifications and orders issued thereunder; Once such an
undertaking is given by the Service Provider and not complying with the
same, then the Authorities are bound to initiate action against the Service
Provider and in the present case, no action has been taken by the
Authorities.
8. The petitioner referred Regulation 6 (1) (l) also, under the
said Section, 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];
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9. In support of the said contentions, the learned counsel for
the petitioner relied on the judgment of the Bombay High Court recently
delivered on 8th March 2021 in W.P.No.3676 of 2020 and the relevant
paragraphs are extracted hereunder:
“80. We have already noted that the 2018 Regulations
have come into force on and from 01.08.2019. Regulation
10(l) makes it abundantly clear that an authorised carrier
shall not demand any container detention charges for the
containers laden with goods detained by the customs for the
purpose of verifying the entries made under section
46 or section 50 of the Customs Act which deal with entry of
goods on importation and entry of goods for exportation
respectively if the entries are found to be correct though as
per the proviso, the authorised carrier may demand container
detention charges after sixty days. Regulation 10(1)(m) makes
it incumbent upon an authorised carrier to abide by all the
provisions of the Customs Act and the rules, regulations,
notifications and orders issued thereunder.
81. The 2018 Regulations is a piece of subordinate
legislation having the force of law. Since it has been framed
by the Board in exercise of the powers conferred by section
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157 read with sections 30, 30A, 41, 41A, 53, 54, 56, 98(3) and
158(2) of the Customs Act, certainly the 2018 Regulations
have statutory force. Respondent No.3 with the approval of
respondent No.2 has issued the detention cum demurrage
waiver certificate dated 16.11.2020 certifying 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 Priya Soparkar 39 wp 3676-20 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.
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87. In the light of the above, we have no hesitation to
hold that objection of respondent No.4 is not legally tenable.
The detention cum demurrage waiver certificate dated 16th
November, 2020 has been validly issued as it can be traced to
Regulation 10(1)(l) of the 2018 Regulations and under
Regulation 10(1)(m) thereof, respondent No.4 i.e., the
shipping line is under a legal obligation to comply with the
certificate. Thus, the detention cum demurrage certificate
dated 16th November, 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 Priya Soparkar 41 wp 3676-20 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
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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
and provisions of a private contract, the terms of the contract
will have to yield to the provisions of the subordinate
legislation to the extent of repungnancy.
89. There is one more aspect which we would like to
deal with. This court while setting aside the first order-in-
original vide the order dated 27th October, 2020 had directed
maintenance of status-quo in respect of the goods of the
petitioner till passing of the fresh order. It is a settled
proposition that an order of the court can cause prejudice to
none. Therefore, it would be wholly unjust, unfair and
inequitable to levy detention or demurrage charges on the
goods of the petitioner when the status-quo order was in
operation.
90. In so far investigation by respondent No.2 into the
complaint lodged by the petitioner dated 3rd November, 2020
is concerned, we feel that the said investigation should be
taken to its logical conclusion. Custom officials are conferred
vast powers under the Customs Act and under the rules and
regulations made thereunder. Such powers are to be exercised
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in the interest of revenue alone. Therefore, it is essential that
high officials of the customs having supervisory jurisdiction
should ensure that personnel working in the Priya Soparkar
42 wp 3676-20 customs department strictly follow the rule
book. For this purpose, internal vigilance mechanism should
be strengthened and effectively used.
92. Thus, on a thorough consideration of the entire
matter, we are of the view that the following directions will
meet the ends of justice :-
I) Respondent No.2 shall take all necessary steps
and ensure that the detention cum demurrage
waiver certificates dated 16.11.2020 are
implemented by all concerned including
respondent Nos.4 and 5 and thereafter to release
the imported goods of the petitioner. Respondent
No.2 shall ensure that the above exercise is
completed within 15 days of receipt of a copy of
this judgment and order.
II) Respondent No.2 shall continue with the
investigation into the complaint of the petitioner
dated 3rd November, 2020 in accordance with law
and take the same to its logical conclusion within
a period of three months from the date of receipt of
a copy of this judgment and order. On competition
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of the enquiry, a copy of the enquiry report shall
be furnished to the petitioner.
III) Considering the fact that customs authorities
had promptly issued out of charge and the
detention cum demurrage waiver certificates post
the fresh order-in-original dated 6th November,
2020, we refrain from imposing cost on the
customs authorities.”
10. The learned counsel for the petitioner relying on the said
judgment, solicited the attention of this Court with reference to Section 126
of the Customs Act, which contemplates 'the officer adjudging confiscation
shall take and hold possession of the confiscated goods'. In view of the said
provision under the Act, Regulations are framed and under Regulation
6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009, no
charges can be recovered. In the event of confiscation of goods by the
Customs authorities as the authorities are in possession of the imported
goods.
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11. The learned counsel further relied on the judgment of the
Madras High Court in the case of Giridhari Homes Private Limited, Vs.
Principal Commissioner of Customs, Chennai-III, reported in 2018 (361)
E.L.T., 463 (Mad) and relevant paragraph 6 is extracted hereunder:
“6. In the light of the above, the writ petition is disposed
of with a direction to the respondents 3 and 4 to forthwith
release the imported cargo without insisting upon the payment
of demurrage charges and detention charges till the date of
release, as it has already been waived by the department by
their Waiver certificates dated 10.01.2018. The respondents 1
and 2 are directed to initiate appropriate action under relevant
regulation against the respondents 3 and 4 on account of their
disobedience. No costs.”
12. In the case of M/s.P.Perichi Gounder Memorial
Charitable Trust Vs. The Commissioner of Customs, dated 06.08.2019 in
W.P.No.29847 of 2018, the Madras High Court held as follows:
“23. In the light of the unique and peculiar facts and
circumstances of this case, viewed in the light of context of the
aforesaid two reported orders (alluded to supra), by another
Hon'ble Single Judge, this Court is of the considered view that
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it is appropriate to direct the respondents to ensure that the
CFS namely Manager, All Cargo Global Logistics Ltd.,
Thiruvottiyur High Road, Thiruvottiyur, Chennai – 600 019
(CFS) and M.S.C.Agency (India) P Ltd., 1st floor, KGN Tower,
No.62, Ethiraj Salai, Egmore, Chennai – 600 105 (Steamer
Agent who owns the container) to whom signed communication
dated 25.04.2018 has been sent, implement the same in letter
and spirit. In other words, respondents are directed to ensure
that the addressees in the communication, 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.”
13. This Court is of the considered opinion that absolutely
there is no quarrel with reference to the legal propositions propounded by
the learned counsel for the petitioner, which is well founded. Once the
imported goods are confiscated by the Customs authorities, they became in
possession of the goods and therefore, the Service Provider shall not levy
any charges for the said confiscated goods. If at all any deposits are
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collected in this regard, the said deposits are to be refunded. The
contentions of the petitioners are that once the Statutory provisions
contemplate that the goods belong to the Customs Department are
confiscated and the Service Provider is not entitled to collect any charges,
then they are bound to release the goods and refund the deposit, if any
collected.
14. In the present case, even the goods are not released and the
Service Provider is claiming charges, which is in violation of the Detention
certificate issued by the Customs authorities. Thus, the petitioner is
constrained to move the writ petition.
15. This Court is of the considered opinion that a thin
distinction is to be drawn in between the Detention certificate as well as the
relief granted by various Courts with reference to the Detention certificate
issued by the Customs Department. The in-between possible or existing
disputes are relevant for the purpose of granting the relief and such disputes
between the Service Provider and an importer or exporter, cannot be
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W.P.No.26838 of 2018
adjudicated in a writ proceedings under Article 226 of the Constitution of
India.
16. Before resolving the disputes between the Customs Cargo
Service Provider and the exporter or importer, the Statutory Detention
Certificate issued by the Customs Authorities cannot be acted upon. There
may be some disputes regarding collection of service charges or otherwise
between the Customs Cargo service Providers and the importer or exporter.
Thus, High Court cannot directly issue a direction to release the goods or
refund the deposit before adjudication of any of these disputes between the
Service Provider and importer or exporter and such an adjudication cannot
be exercised in writ proceedings. While granting the relief, the grievances of
both the parties are to be considered by the Courts. Admittedly the
Detention Certificate is issued by the Customs Authorities and the Customs
Authorities are not connected with the contract between the service provider
and the importer. Thus, the Detention Certificate confers a right to claim the
relief of refund or release of goods. However, the right is to be exercised in
the manner known to law and after resolving the disputes if any prevails
between the service provider and the importer or exporter.
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17. The Detention Certificate is issued in conformity with the
Rule 6 (1) (l) – handling or Cargo in Customs Areas Regulations, 2009. The
certificate provides a right to the holder to claim release of the imported
goods or to seek refund of deposit. The terms and conditions of the contract
and the dispute if any prevails between the service provider and the
importer are not adjudicated in any of the judgments cited by the petitioners.
Such disputes provide a cause for either of the parties to resolve the same
before releasing the goods or refund of deposit amount. Thus, the terms and
conditions of the contract between the Service Provider and the importer is
also an important factor, which is to be considered while granting relief in
writ petition, merely based on the Detention Certificate issued by the
Customs Authorities.
18. In the present case, admittedly, the goods are being
maintained by the Service providers. On confiscation, the Customs
authorities take possession. However, the goods are still under the custody
of the Service Provider. The goods are not taken away from the premises of
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the Service Provider. Therefore, the grievances of the service provider are
also to be looked into and considered, while granting the relief of release of
the imported goods or refund of the deposits, if any made.
19. Thus, this Court is of the considered opinion that in
between disputes, more specifically, with the Service Provider and the
importer or exporter has not been considered in any of these judgments
relied upon by the petitioners. Therefore, this Court is of the opinion that
the Detention certificate issued under the provisions of the Customs Act is
reiteration of the legal position, which is binding on the Service Provider.
However, such Detention certificate cannot be the sole document for the
purpose of grant of relief of refund or release of goods without further
adjudication with reference to the disputes or grievances exists between the
Service Provider, who is a private party and the exporter or importer.
20. The learned Senior Panel Counsel appearing on behalf of
the respondents disputed the contentions raised on behalf of the writ
petitioner by stating that the Authorities considered the classification of the
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impugned goods. However, the Customs Authorities issued the Detention
Certificate based on the orders of this Court dated 12.09.2017 passed in
W.P.No.22114 of 2017. The learned Senior Panel Counsel made a
submission that based on the regulations, the Customs Authorities issued
the Detention Certificate and the notice pursuant to the orders of the High
Court in writ petition, Detention Certificate was issued. Therefore, they
have implemented the order and the recovery of refund is to be made by the
4th respondent, who is the Service Provider. The 4th respondent is APL India
Private Limited and private person. Thus, the disputes between the parties
are to be adjudicated and the Customs Authorities cannot involve in any of
such disputes between the parties based on the terms and conditions of the
contract. Therefore, the relief as such sought for are not entertainable and
Customs Authorities have granted the Detention Certificate as per the
Regulations and it is for the petitioner to resolve the disputes with the 4th
respondent and claim refund before the Forum concerned in the manner
prescribed under law.
21. The enforceability of the Detention Certificate issued under
Rule 6 (1) (l) – handling of Cargo in Customs Areas Regulations, 2009 and
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claiming of refund by the importer or exporter from the Service Provider are
elaborately adjudicated by this Court in W.P.No.15490 of 2020 dated
22.06.2021 and the relevant paragraphs of the judgment are extracted
hereunder:
“11. Considering the arguments as advanced by the
respective learned counsels appearing on behalf of the parties
to the lis, this Court is of the considered opinion that
Regulation 3 of the Handling of Cargo in Customs Areas
Regulations, 2009 states that “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 2(1)(b) defines “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.
12. Regulation 5 provides Conditions to be fulfilled by
Customs Cargo Service Provider. Regulation 6 speaks about
Responsibilities of Customs Cargo Service Provider. Thus, the
Detention certificate issued under Regulation 6(1)(l), falls
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under the responsibilities of Customs Cargo Service Provider.
Thus, the responsibility of the Customs Cargo Service Provider
under Regulation 6(1)(l) is that “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”. It is clear that the Customs Cargo Service
Provider shall not charge any rent or demurrage.
13. Regulation 6, Sub-Clause (3) enumerates that “the
Customs Cargo Service Provider shall publish and display at
prominent places including website or webpage of the Customs
Cargo Service Provider the schedule of charges for the various
services provided by him in relation to the imported goods or
export goods in the customs area.” Perusal of the scheme of
Regulation would reveal that there are certain contractual
obligation between the Customs Cargo Service Provider as
well as the importer or exporter. Such terms and conditions of
the contract cannot be enforced by filing a writ petition or
based on the Detention certificate issued by the competent
authorities in the absence of any factual adjudication with
reference to the disputes.
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14. The question arises, how to decide whether any rent
or demurrage on goods seized is charged, collected or
recovered by the Customs Cargo Service Provider. In the
present cases, the third respondent is the Cargo Service
Provider and the petitioners have deposited some amount and
seeks refund. The Customs authorities issued a certificate
merely stating that “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 the
cargo.”
15. Thus, this Court has to examine the nature of the
certificate issued by the Customs authorities under Regulation
6(1)(l) of the Handling of Cargo in Customs Areas
Regulations, 2009. Definition of a certificate is that 'a
document containing a certified statement especially as to the
truth of something specifically a document certifying that one
has fulfilled the requirements.'
16. Therefore, the certificate issued under Regulation
6(1)(l) is to be construed for the purpose of eligibility for
claiming refund pursuant to the conditions stipulated in
Regulation 6(1)(l). In other words, the Customs authorities
certified that the importer or exporter is eligible to claim
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refund, if any excess rent or demurrage is paid with reference
to Regulation 6(1)(l) of the Handling of Cargo in Customs
Areas Regulations, 2009.
17. The next question would be, whether issuance of a
certificate would provide a cause for seeking the relief of
refund directly under Article 226 of the Constitution of India.
18. Perusal of the certificate in the present writ petitions
issued by the Customs Authorities in proceedings dated
05.06.2018 reveals that 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 the
cargo”. Therefore, the third respondents are obligated to
consider the refund with reference to Regulation 6(1)(l) of the
Handling of Cargo in Customs Areas Regulations, 2009.
However, mere certificate, undoubtedly would not confer any
right to seek refund directly by filing a writ petition before the
High Court under Article 226 of the Constitution of India.
19. Eligibility to claim refund is one aspect and right for
such refund is another aspect. In between the eligibility and
right, an adjudication is warranted with reference to any
dispute exists between the parties based on the agreement or
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contractual obligations. Thus, Detention Certificate is an
eligibility certificate, confirming the eligibility of an importer
or exporter to claim refund under Regulation 6(1)(l) of the
Handling of Cargo in Customs Areas Regulations, 2009.
However, mere eligibility would not confer any right to claim
refund in the absence of adjudication of disputes or
compliance of the contractual obligations between the parties.
In other words, the Detention certificate perse would not
confer any right on the petitioners to seek refund directly from
the Customs Cargo Service Provider. The terms and
conditions, contractual obligations between the petitioners and
the Customs Cargo Service Provider are unconnected with the
Customs authorities of the Department of Customs. Thus, an
adjudication becomes mandatory for the purpose of refund. In
the event of consensus or no dispute, the parties themselves
may take a decision for refund. However, the Detention
certificate cannot provide cause for seeking a relief by filing
the writ petitions under Article 226 of the Constitution of India.
20. The amount of deposit, the amount of refund, the
period for which, the importer or exporter is entitled for refund
and the other claims of the Customs Cargo Service Provider
regarding freight charges, transportation charges etc., all are
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to be decided based on the terms and conditions of the contract
entered into between the Customs Cargo Service Provider and
the importer or exporter. In some circumstances, the importer
or exporter pay such charges voluntarily on various reasons
and all these facts and circumstances deserves an adjudication
and the issues disputed are to be resolved and then only the
question of refund would arise.
21. For example, a mere certificate in any
circumstances, would not be a ground to claim refund directly
from the Customs Cargo Service Provider. For all purposes,
the authorities issued such certificate, enabling the exporter or
importer to claim refund or otherwise in accordance with
Regulation 6(1)(l) of the Handling of Cargo in Customs Areas
Regulations, 2009.
22. The Regulations contemplates responsibilities of
Customs Cargo Service Provider. Thus, the Service Provider is
duty bound to follow the provisions of the Act as well as the
Regulations scrupulously. While adhering to the provisions of
the Act as well as the Regulations, the disputed facts between
the parties based on certain contracts are to be adjudicated
before the proper forum and such an elaborate adjudication
cannot be done by the High Court in a writ proceedings.
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23. Roving Enquiry cannot be conducted in a writ
proceedings. Verification and scrutinization of original
records and evidences are imminent. In the absence of any
such scrutinization, inspection or enquiry, the liabilities of the
parties cannot be determined and therefore, the High Court
has to pave way for such adjudication between the parties in
order to claim refund or otherwise with reference to
Regulation 6(1)(l) of the Handling of Cargo in Customs Areas
Regulations, 2009.
24. Presuming that the relief as such sought for in the
present writ petitions is granted, merely based on the
Detention certificate, in the absence of factual adjudication,
undoubtedly, there is a possibility of commissions or
omissions, which may lead to miscarriage of Justice.
Therefore, the High Court need not go into such disputed facts
merely based on the affidavits filed by the respective parties to
the writ petition. Mere affidavit would not be sufficient to form
an opinion regarding the disputed facts, which all are to be
made with reference to the documents and evidences and in
consonance with the terms and conditions of the agreement or
contract.
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W.P.No.26838 of 2018
25. This being the principles to be followed, the
Detention certificate issued by the Customs authorities is to be
construed as an eligibility certificate for the purpose of
claiming the benefit conferred under Regulation 6(1)(l) of the
Handling of Cargo in Customs Areas Regulations, 2009 and
the certificate would not confer any right on the holder of the
certificate to claim refund without adjudication of the disputed
facts and circumstances with reference to the terms and
conditions of the agreement or contract. Such an adjudication
cannot be done in a writ proceedings under Article 226 of the
Constitution of India. Therefore, for the purpose of
adjudication, the parties are bound to approach the competent
forum and after resolving the disputes, the refund or otherwise
is to be granted by following the procedures as contemplated.
26. In the present cases, the petitioners sought for a
direction to the second respondent, to direct the third
respondent. Such a direction is uncalled for, in view of the fact
that the second respondent has already issued Detention
certificate as per the provisions. It is contended that the second
respondent is obligated to execute the Detention certificate.
Such an execution cannot be done without adjudication of the
disputed facts and circumstances. This apart, as observed
earlier, mere certificate would not confer any right to claim
refund and such a certificate would enable the holder to claim
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W.P.No.26838 of 2018
refund under Regulation 6(1)(l) of the Handling of Cargo in
Customs 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
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W.P.No.26838 of 2018
granting the relief. The extraordinary powers conferred under
Article 226 may be used by the High Court in order to mitigate
the injustice, if any occurred to the citizen of this great Nation.
However, the entertainability with reference to certain facts
are to be considered for the purpose of granting the relief.
Therefore, the maintainability may not be the point, but the
entertainability is the question, which is to be considered with
reference to the mixed question of fact of law. In this regard, a
person approaching the High Court, should establish that he
has a right to claim relief. In the absence of establishing a
right, no relief can be granted in a writ proceedings. As held in
aforementioned paragraphs, the Detention certificate issued by
the Customs authorities is to be construed as an eligibility
certificate for claiming refund. However, the said certificate
would not confer right to get back the refund, in the absence of
resolving the disputes between the Service Provider and the
importer or exporter. Thus, the procedures and resolving the
disputes in between the eligibility certificate and refund can
never be waived by the High Court nor a direction can be
issued to direct the Service Provider to refund the amount
without resolving the disputes, if any exists between the Service
Provider and the importer or exporter.”
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W.P.No.26838 of 2018
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 being the nature of the Detention Certificate issued
under the Regulations, this Court is of an opinion that mere issuance of
Detention Certificate would not confer any right to get refund directly from
service provider, who is a private party. The contract between the service
provider and the importer and exporter are to be considered and terms and
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W.P.No.26838 of 2018
conditions are to be looked into with reference to the facts and an
adjudication on the factual aspects, became imminent, and such an exercise
cannot be done in a writ proceedings.
24. Thus, the relief as such sought for cannot be granted and
the petitioner is at liberty to initiate appropriate action and claim refund
before the appropriate forum and by following the procedures as
contemplated. With these observations, the writ petition stands dismissed.
No costs.
01.07.2021
Speaking order
Index : Yes
Internet: Yes
Pns
https://www.mhc.tn.gov.in/judis/
W.P.No.26838 of 2018
S.M.SUBRAMANIAM,J.
Pns
To
1.The Commissioner of Customs,
Chennai II Commissionerate,
Custom House, No.60, Rajaji Salai,
Chennai – 600 001.
2.The Additional Director General,
Directorate of Revenue Intelligence,
No.27, G.N.Chetty Road,
T.Nagar, Chennai – 600 017.
3.The Deputy Commissioner of Customs,
Group – II, Chennai II Commissionerate Custom House,
No.60, Rajaji Salai, Chennai – 600 001.
4.The Manager, APL (India) Private Ltd.,
New No.8, Old No.15, Whannels Road, Egmore,
Chennai – 600 008.
W.P.No.26838 of 2018
01.07.2021
https://www.mhc.tn.gov.in/judis/
