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2021 (8) TMI 617 - HC - CustomsSeeking across-the-board amnesty from paying penal charges to CFSs, ICDs and Shipping lines, during the entire period of lockdown enforced by the Government consequent on the COVID-19 pandemic - Contractual rights between private individuals and the regulation, thereof, by statutory/Governmental authorities in public interest - justification for Inability to move or transport their export/import goods, during the said period - amnesty schem - levy of penal charges by ICDs/CFSs, for the period, beyond a certain number of “free days”, during which the goods continue to remain in their premises, and levied by shipping lines, in the event the containers are not returned to them within a fixed number of “free days” - CBEC Circular 22nd December, 1995 - Disaster Management Act - the Major Port Trusts Act - the Merchant Shipping Act - the Customs Act (along with the Handling of Cargo in Customs Areas Regulations, 2009, issued thereunder). HELD THAT:- The TAMP, under Section 48, merely fixes and approves the scales of rates for services to be performed by the Board or other persons. Even in respect of any CFS which may be located within the area of a Major Port and may, therefore, conceivably be amenable to Section 48 of the Major Port Trusts Act, all that the Section regulates are the scales of rates for the services to be performed by the CFSs or ICDs. There is no provision, in the Major Port Trusts Act, which can regulate the levying, charging or recovery, by the CFSs or ICDs, from their customers, of charges payable against storage of goods – which would include penal charges in the event of the goods remaining in the premises of the CFSs or the ICDs beyond the free period. There is a fundamental difference, in basic fiscal jurisprudence, between fixation of a tariff and levy and collection of charges in terms thereof. The TAMP has no concern with the recovery and collection of penal charges, whether in the name of ground rent, demurrage or detention charges, by ICDs, CFSs or shipping lines - A conjoint reading of para 3(iii) and 10 of the MOS Circular dated 21st April, 2020 would seem to indicate that the Major Ports have been directed to ensure non-recovery of penal charges, demurrage and detention charges on any port user including importers and exporters, CFSs, ICDs and shipping lines. This circular, has, however, been expressly issued under Section 111 of the Major Port Trusts Act. We have already seen that Section 111 empowers the Central Government to issue directives only to the Board or to the TAMP. The direction for non-recovery of penal charges, by ICDs, CFSs and shipping lines from the importers or exporters obviously has no link with the TAMP, as the authority of the TAMP, under the Major Port Trusts Act, extends only to fixation of the tariff and not to regulation of collection of charges in accordance therewith. The Board, too, is not invested by the Major Port Trusts Act, to regulate, much less interdict, the levy, recovery and collection of charges by the CFSs, ICDs or shipping lines from the importers or exporters. Section 53 of the Major Port Trusts Act does authorise the Board to, “in special cases and for reasons to be recorded in writing, exempt either wholly or partially any goods or vessels or class of goods or vessels from the payment of any rate or of any charge leviable in respect thereof according to any scale in force under this Act or remit the whole or any portion of such rate of charge so levied” - Directions, issued by an executive authority in exercise of the power invested in such authority to do so, have necessarily to be such as would be amenable to compliance by the authority to whom the directions are issued. The authority issuing directions, in exercise of powers conferred by statute in that regard, has also to ensure that the body to whom the directions are issued is empowered to comply with such directions. It is as much folly, in law, to issue directives in excess of the authority vested in the one, as to issue directives to perform acts in excess of the authority vested in the other. Even under the Disaster Management Act, the directions contained in paras 3(iii) and 10 of the Circular/order dated 21st April, 2020, issued by the MOS, could neither be sustained nor enforced by issue of a mandamus - the reliance, by the petitioners, on the Circulars/Orders dated 31st March, 2020 and 21st April, 2020 of the MOS cannot support the prayers contained in the petitions. The relationship between shipping lines and their customers was expressly contractual in nature, and the prerogative to decide on the charges leviable from the customers for continuing to retain the containers beyond the “free period” vested in the shipping lines, is governed by negotiated contract ad idem. The State has no direct causal connection with these charges. The powers exerciseable under the Disaster Management Act could not, therefore, be so exercised as to restrain collection thereof, by the shipping lines. The aspect of the charges recovered, by ICDs of CFSs, from importers or exporters was, clearly, not even remotely in the contemplation of the authorities while issuing the aforesaid Circular dated 8th June, 2009. The Circular has been issued for a very specific purpose and to clarify certain specific aspects relating to the functioning of ICDs and CFSs and the distinction between the two and cannot, therefore, be used as a ground to seek waiver, or exception, from payment of penal charges to ICDs, CFSs or shipping lines, beyond the “free periods”. Nor can this Circular be used to support the contention that all instructions issued by the CBIC are, ipso facto, binding on ICDs and CFSs. Writ petition dismissed.
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