Madras High Court
Real Petrochem vs The Principal Commissioner Of ... on 12 June, 2023
W.P.No.17381 of 2022
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.06.2023
CORAM:
THE HONOURABLE MR.JUSTICE R.MAHADEVAN
AND
THE HONOURABLE MR. JUSTICE MOHAMMED SHAFFIQ
W.P.No.17381 of 2022
Real Petrochem
Rep by its Partner,
Mohammed Abdhul Kadhar Ansari
S/o Mohammed Khaja Mohiddin
No.1, Plot No.113/114, ASK Nagar,
4th Street, Adambakkam,
Chennai 600 088. … Petitioner
v.
1. The Principal Commissioner of Customs,
Chennai-III, Customs House, 60, Rajaji
Salai, Chennai – 600 001.
2. The Deputy Commissioner of Customs,
O/o The Principal Commissioner of Customs,
Chennai – III Commissionerate,
Special Intelligence and Investigation Branch,
Customs House, Chennai 600 001.
3.The Manager,
M/s Calyx, CFS,
28 NHS., Puzhal, Kadhirvedu,
Chennai – 600 066.
1/8
https://www.mhc.tn.gov.in/judis
W.P.No.17381 of 2022
4.The Manager,
M/s Cosco Shipping Lines (Indis) Pvt., Ltd.,
6th Floor, 0, Khivraj Complex 2,
No 480, Annasalai, Nandanam,
Chennai Tamil Nadu 600 035. … Respondents
Prayer: Writ Petition is filed under Article 226 of the Constitution of India, praying to
issue a writ of mandamus directing the respondents herein to cause release of goods
imported under Bill of Entry No.8283769 dated 15.04.2022 without levy of detention,
demurrage and container storage charges waived vide detention certificate issued by the
office of the 2nd respondent in F.No.S. Misc 122/2022-SIIB from the date of the
detention of the goods till their actual release.
For Petitioner : Mr.M.Ravichandran
For Respondents : Mr.Umesh Rao
Senior Standing Counsel for R1 & R2
Mr.A.K.Jayaraj for R3
Mr.Rahul M. Shankhar for R4
ORDER
(Order of the court was made by Mohammed Shaffiq, J.)
This Writ Petition is filed praying for a writ of mandamus to direct the
respondents to release the goods imported under Bill of Entry No.8283769 dated
15.04.2022 without levy of Detention, Demurrage and Container Storage Charges,
based on waiver certificate issued by the 2nd respondent dated 08.06.2022.
https://www.mhc.tn.gov.in/judis
W.P.No.17381 of 2022
2. The petitioner had imported Fuel Oil in Flexi Bags to the extent of 205.580
Kgs from Singapore. The goods were imported under the cover of Certificate of Origin
dated 07.04.2022 and were dispatched under Bill of Lading No.COAU 7237305340
dated 10.04.2022. The invoice value was Rs. 78,56,513/-, but the petitioner had self
assessed the duty at Rs. 17,07,072/-. The petitioner’s container was examined by the
Customs Authority on 10.05.2022 and samples were drawn from one of the containers
and sent for analysis. Subsequently, the results were reeived from the Customs Housing
Laboratory on 25.05.2022 to the effect that the samples collected match the standards
and quality of the Fuel Oil declared by the petitioner. On 30.05.2022 the 2nd respondent
issued a No Objection Certificate (NOC) and a waiver certificate was also issued on
08.06.2022 stating that the Liner Detention Charges and Demurrage Charges for the 10
containers from the date of detention i.e., on 19.04.2022 to till the date of NOC i.e.,
30.05.2022. Despite the waiver certificate being submitted, the 3rd and the 4th
respondents refused to waive the Demurrage and the Container Storage Charges.
Aggrieved, the petitioner filed a writ petition before the learned Single Judge.
3. By order dated 27.09.2022, the learned Single Judge directed the writ petition
to be tagged along with W.A. Nos.1667 and 1668 of 2022, after obtaining orders from
the Hon'ble Chief Justice, since identical question is raised in the said writ appeals,
https://www.mhc.tn.gov.in/judis
W.P.No.17381 of 2022
which are pending before the Division Bench of this Court. Pursuant thereto, the
present writ petition was tagged along with the said Writ Appeals.
4. A Division Bench of this Court was pleased to frame the following issues for
consideration in the above batch of matters:
(1) Whether Regulation 6 (1) (l) of the Handling of Cargo in
Customs Areas Regulations, 2009, is binding on all Customs Cargo
Service Providers (hereinafter referred to as "CCSP")?
(2) Whether in the absence of any challenge to Regulation 6(1)(l) of
the Handling of Cargo in Customs Areas Regulations, 2009, it is open to
the CCSP to act contrary to the Certificate issued therein?
(3) Whether the Certificate issued would constitute an order for the
purposes of Handling of Cargo and Customs Areas Regulations,2009 ?
(4) Whether there is any distinction in terms of Regulation 6(1)(l) of
the Handling of Cargo in Customs Areas Regulations, 2009, for the
purpose of waiver of demurrages, on the basis of the detention being
justifiable or otherwise?
(5) Whether, in the absence of a challenge to the Detention
Certificate by the Customs Cargo Service Providers, it is open to CCSP to
question the correctness or legality in the Writ Petitions filed by the
importers for release of the goods ?
(6) Whether Sea Cargo Transhipment Regulations, introduced in the
year 2018, would have a bearing ?
https://www.mhc.tn.gov.in/judis
W.P.No.17381 of 2022
(7) Whether the judgments of the Supreme Court in Grandslam and
four other cases, which are relied upon in the case of Celebi (Delhi HC)
would have a bearing and what would be the precedential value of those
judgments in the absence of reference to Regulation 6 (1) (l) Handling of
Cargo in Customs Areas Regulations, 2009,?
(8) Whether Customs Authorities are held liable for demurrages, if
so, under what circumstance?
5. In the connected matter, viz., W.P.No.17386 of 2022, interim order directing
release of goods, was passed on 22.12.2022 subject to complying with the following
conditions as specified in the order of the Division Bench of this Court dated
26.09.2022 passed in WA Nos.1667 and 1668 of 2022:
i) The petitioner shall execute two bank guarantees equivalent to
50% of the charges payable to each of the private respondents in favour of
the Customs Department as security for payments to the private
respondents;
ii) Over and above the bank guarantees, the petitioner shall also
execute personal bonds for the remaining 50% of the charges payable to
each of the private respondents in favour of the Customs Department.
iii) On confirmation of receipt of the bank guarantees and execution
of bonds from the Customs Department to cover the amount payable to the
respective 3rd and 4th respondents, the imported goods covered by the
respective Bills of Entries and the containers shall be handed over to the
respective parties forthwith.
https://www.mhc.tn.gov.in/judis
W.P.No.17381 of 2022
iv) The bonds and the bank guarantees which are directed to be
offered by the petitioner are to be held as a security for the amounts to be
paid by the petitioner, if any, to the respective private parties herein.
v) This arrangement is only an interim measure and will be subject to
the final disposal of the writ petition.
vi) The bank guarantees shall be kept alive till the disposal of the
writ petition.
vii) As there is some dispute regarding the constitution of the
petitioner, it is clear that if the petitioner is a company, the personal bonds
shall be given by the Director or else, by the Proprietor, if the petitioner is
a propreitory concern.
6. While so, the learned counsel for the petitioner submitted that there is a need to
detag/delink the present writ petition from the batch inasmuch as there is no
misdeclaration, while the above batch of cases relate to misdeclaration. Accordingly,
the present writ petition was delinked from the batch and listed for hearing before this
court.
7. During the course of hearing, the learned counsel for the petitioner would
submit that the sum that is due to the respondents 3 and 4 is only Rs.14,00,000/- and
Rs.22,96,000/- respectively, while the learned counsel for the 3rd and 4th respondents
would submit that the sum that is due, is much higher than what is stated by the writ
https://www.mhc.tn.gov.in/judis
W.P.No.17381 of 2022
petitioner. The learned counsel for the fourth respnodent also expressed that they were
willing to give a waiver of 30%, which is not accepted by the petitioner. Ultimately, the
learned counsel for the petitioner submitted that the petitioner intends to resolve, by
paying whatever the amount is due, on consulting / settling with the 3rd and the 4th
respondents.
8. In view of the above submissions, we grant liberty to the petitioner to approach
the 3rd and the 4th respondents for release of the goods. However, we make it clear that
we have neither decided on the quantum that is due to the 3rd and 4th respondents nor
have we resolved any of the issues that may arise for consideration, which we intend to,
while disposing of the batch of matters pending before us.
9. With the above observations, the writ petition stands disposed of. No costs.
[R.M.D., J.] [M.S.Q., J.]
12.06.2023
Speaking (or) Non-Speaking order
Index: Yes/ No
Neutral Citation : Yes/No
shk/mka
https://www.mhc.tn.gov.in/judis
W.P.No.17381 of 2022
R.MAHADEVAN, J.
and
MOHAMMED SHAFFIQ, J.
shk/ mka
To
1. The Principal Commissioner of Customs,
Chennai-III, Customs House, 60, Rajaji
Salai, Chennai – 600 001.
2. The Deputy Commissioner of Customs,
O/o The Principal Commissioner of Customs,
Chennai – III Commissionerate,
Special Intelligence and Investigation Branch,
Customs House, Chennai 600 001.
3.The Manager,
M/s Calyx, CFS,
28 NHS., Puzhal, Kadhirvedu,
Chennai – 600 066.
4.The Manager,
M/s Cosco Shipping Lines (Indis) Pvt., Ltd.,
6th Floor, 0, Khivraj Complex 2,
No 480, Annasalai, Nandanam,
Chennai Tamil Nadu 600 035.
W.P.No.17381 of 2022
12.06.2023
https://www.mhc.tn.gov.in/judis
