TMI Blog2011 (10) TMI 22X X X X Extracts X X X X X X X X Extracts X X X X ..... - - Dated:- 5-10-2011 - D.Y. Chandrachud and A.A. Sayed, JJ. Vikram Nankani with Nitya Bagaria and Sushanth Murthy i/b. Naresh S. Thacker for the Petitioner Pradeep S. Jetly for the Respondent JUDGMENT D.Y. Chandrachud, J 1. The Petition is filed by an association representing eleven Container Freight Stations, who claim to handle nearly eighty per cent of the local container cargo at Nhava-Sheva. The Petitioner challenges (i) Circular 4/2011; (ii) Public Notice 8/2011; (iii) A check list issued under a letter dated 3 March 2011, as modified by a letter dated 6 April 2011. The Petitioner contends that these are unconstitutional and ultra vires Articles 14 and 19(1)(g) of the Constitution, the Environment (Protection) Act, 1986 and the Dangerous Goods (Arrival, Receipt, Transport, Handling and Storage) in Jawaharlal Nehru Port Regulations, 2007. The bone of contention in the present case relates to the prescription of a distance to be maintained between general cargo and hazardous cargo at Container Freight Stations or, as the case may be, Inland Container Depots. 2. Section 45 of the Customs Act, 1962 provides that all imported goods unloaded in a Customs area, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Inland Container Depots (ICD) and Container Freight Stations (CFS). Once a proposal is accepted, a Letter of Intent is issued to an applicant by the Infrastructure Division in the Department of Commerce of the Ministry of Commerce and Industry of the Union Government. Every applicant furnishes an undertaking for compliance with the Handling of Cargo in Customs Areas Regulations, 2009. Container Freight Stations or, as the case may be, Inland Container Depots are notified and regulated by the Customs Act, 1962. Their boundaries are notified under Section 8. Every CCSP is under a mandatory duty to comply with the Regulations. The Regulations, as we have noted earlier, empower the Commissioner to prescribe inter alia such other facilities as may be required. The Commissioner is, therefore, duly empowered to prescribe conditions for the safe and secure handling of cargo. This assumes some special significance, particularly in the context of cargo which is of a hazardous nature. The requirements are to be duly spelt out by the Commissioner having regard to the safety and safe working conditions of those who work either in a CFS or ICD. The Commissioner is vested with a power to relax t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or storage of hazardous cargo shall also fulfill the standards or norms prescribed, in National Building Code of India (part 4 - Fire and Life safety specify the requirements for fire prevention, life safety in relation to fire and fire protection of buildings necessary to minimize danger to life and property from fire) or by the concerned State/Centre Governments for fire safety." 5. On 4 February 2011, a public notice was issued (Public Notice 8/2011) by the Commissioner of Customs (Export) at the Jawaharlal Nehru Customs House, Sheva. The public notice drew attention to the Regulations of 2009 and to the Guidelines that were issued by the Central Board of Excise and Customs. Accordingly, CCSPs who intended to store, receive, despatch or handle hazardous cargo or hazardous cargo along with general cargo were required to apply to the Commissioner of Customs together with requisite particulars so that compliance could be verified in terms of Regulation 10(2). 6. On 3 March 2011, the Deputy Commissioner of Customs issued a communication stating that all CFSs who wish to store, handle, despatch or receive hazardous goods should comply with the guidelines as stipulated in the publ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ironment and Forests and of Shipping. On 11 April 2011, the Commissioner issued a circular stating that the distance of 100 meters between general cargo and hazardous cargo should be read as 200 meters in the circular dated 3 March 2011. 8. The Petitioner has during the course of these proceedings assailed the restriction which was imposed by the Commissionerate of Customs requiring the maintenance of a minimum distance initially prescribed at 100 meters between hazardous and general cargo and subsequently enhanced to 200 meters. On behalf of the Petitioner it has been submitted that (i) There is no scientific basis for prescribing a minimum distance; (ii) In respect of the Jawaharlal Nehru Port, Regulations have been framed in 2007, prescribing the minimum distance for segregation of hazardous cargo and that there was no reason to depart from those Regulations in the case of CFSs and ICDs; (iii) The Central Board of Excise and Customs had by its Guidelines dated 10 January 2011 only required the maintenance of a safe distance of 200 meters between the main office and the Administrative and Customs Building and hazardous cargo. No requirement of segregation between general and ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the statutory power conferred by Section 141(2) read with Section 157. The Regulations spell out the conditions which are required to be fulfilled by an applicant who seeks permission for retaining custody and in handling imported or export goods in a Customs area. Regulation 5 prescribes conditions in regard to maintenance of infrastructure and other facilities and empowers the Commissioner of Customs to specify the facilities which are required to be maintained. The safety and security of the Customs area is a matter of paramount concern. Even though a power to relax has been conferred upon the Commissioner by Regulation 7, that power has to be exercised with a view to subserving the basic object and purpose of the regulations. 11. Following the suggestions of the Parliamentary Committee on Subordinate Legislation, the Central Board of Excise and Customs initially prescribed a minimum distance of 200 meters between the storage of hazardous cargo and the main office or administrative or Customs office building. The Deputy Commissioner of Customs introduced a check list which was forwarded together with a communication dated 3 March 2011. The check list required the maintenance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Union Ministry of Environment and Forests and to the Union Ministry of Shipping. Obviously in such matters a decision which is once taken is capable of being altered having regard to the requirements of safety and security and after taking into account practical concerns which are expressed by trade and industry. The concerns of safety and security need continuous monitoring and evaluation. A standard once laid down is not immune to change. In our view, it would be appropriate, since a process of reexamination has been initiated by the Central Board of Excise and Customs, if the Competent Authority in that regard is left to take a considered decision after considering all the requisite facets of the case. We accordingly would expect that the concerned Ministries of the Union Government which are seized of the issue namely, the Union Ministry of Finance (Department of Revenue), the Union Ministry of Environment and Forests and the Union Ministry of Shipping will undertake a collaborative exercise and arrive at a decision, based on the views of experts and the need to maintain safety and security. Nothing arbitrary in the decisions impugned before the Court is shown. With these obse ..... X X X X Extracts X X X X X X X X Extracts X X X X
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