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M/s Royal Pluz Courier, M/s. Ruby Cargo Versus Union of India And Others

2015 (4) TMI 925 - KERALA HIGH COURT

Prohibition on trade - Denial to operate as courier service - cost recovery charges - It is stated that the appointment of the custodian for handling of courier cargo is a precondition prescribed by statute for allowing courier operations and hence, the courier operations can be allowed only after the statutory requirement is fulfilled. - held that:- present stalemate is only because of the communication gap between the third respondent and the first respondent regarding cost recovery charges. T .....

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pondents : Sri Thomas Mathew Nellimoottil,sc,cb Ex, Adv. Sri V Santharam, Sri M Gopikrishnan Nambiar, Sri P Gopinath, Shri P Benny Thomas, Sri K John Mathai, Sri Joson Manavalan, Sri Kuryan Thomas, Advs. JUDGMENT The petitioners, who are the authorised courier agency registered under the provisions of the Courier Import and Export (Clearance) Regulations, 1998 and who are functioning in the Trivandrum International Airport since 2009 pursuant to Exts.P1 and P2 has approached this Court alleging .....

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or the courier operations at Thiruvananthapuram International Airport; iii) Declare that the inertia exhibited by the respondents in not permitting the petitioners to resume the courier operations is violative of the petitioners' fundamental rights guaranteed under WPC No.2491/2015 2 Arts.14, 19 and 21 and is bad in law and illegal; iv) direct the respondents to compensate the petitioners for the unreasonable inertia, arbitrary exercise of authority and abuse of office exhibited by them, and .....

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ly challenge the revocation orders culminating in Exts.P9 to P16 orders issued by various authorities including this Court as well as the Chief Commissioner of Customs. The licenses were restored as evidenced by Exts.P13 and P16. 3. However, the respondents are not permitting the petitioners to function at Thiruvananthapuram Airport and the petitioners are arbitrarily denied their right to carry on their trade. No facilities which were earlier enjoyed by the petitioners prior to their revocation .....

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1 and 2, they have contended as follows: It is stated that the payment of cost recovery charges is a mandatory requirement to be fulfilled by the third respondent under Handling of Cargo in Customs Area Regulations, 2009 unless specifically exempted by an order of the Ministry of Finance, Government of India. No such order has been issued by the Ministry of Finance, Government of India. On the contrary, the Central Board of Excise and Customs have issued several instructions to the effect that n .....

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f the Directorate General of Human Resources Development, Customs and Central Excise, New Delhi is produced as Ext.R6. In view of the above instructions, the 2nd respondent has, by letter dated 28.1.2015, informed the 3rd respondent that it is imperative that they should comply with the mandatory conditions prescribed under Regulation 5 of the Handling of Cargo in Customs Area Regulations, 2009 and also pointing out that Regulation 10 of Handling of Cargo in Customs Area Regulations, 2009 enjoin .....

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ensure that necessary facilities and infrastructure provided by the custodian is fool proof and also ensure that adequate staff is provided on a dedicated basis to the terminal. In this connection, the true copy of Alert Circular No.19/2014 dated 23.12.2014 issued by the Directorate of Revenue Intelligence, New Delhi is produced as Ext.R8. It is stated that the appointment of the custodian for handling of courier cargo is a precondition prescribed by statute for allowing courier operations and .....

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ms Officials/authorities intimated that application in the prescribed form under Regulation 9(1) of the Handling of Cargo in Customs Area Regulations, 2009 has to be submitted by the Handling of Cargo in customs Area Regulations 2009. Accordingly, Airport Authority of India vide letter No.AAT/LM/Courier Terminal/2014/345 dated 17.12.2014 and No.351 dated 13.1.2015 has submitted application for the restoration of Custodianship for International Courier Cargo Terminal in favour of Airport Authorit .....

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thapuram Airport. True copy of the above stated communication dated 17.12.2014 and dated 13.1.2015 are produced as Exts.R3(d) and Ext.R3(e) respectively. 9. I have heard Mr.P.G.Jayashankar, the learned counsel for the petitioners, Mr.Thomas Mathew Nellimoottil, the learned standing counsel for respondents 1 and 2 and Mr.V.Santharam, the learned standing counsel for the Airport Authority of India. 10. Mr.Jayashankar argued that the petitioners are eligible to continue operations as authorised cou .....

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to resume their work. They are retaining the staff, the telephone connections, hired vehicles etc. and are thus incurring a monthly expense of approximately ₹ 75,000/- each. The losses, though not quantifiable in terms of money would approximately come to about ₹ 40,00,000/- till date, excluding the loss of business, loss of reputation etc. 12. Since 2012, the petitioners have been deprived of their income, solely due to the hasty steps taken by the then Commissioner of Customs and .....

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d Seaports, courier operations are provided under the CIECR are going on smoothly and in full swing. As a result of the same, all the business handled by the petitioners are now being done by other couriers in the rest of the country. 14. From the line of the contentions taken by respondents 1 and 2, it can be seen that the petitioners are not permitted to operate on account of an issue regarding the cost recovery charges. An extent of 1209 sq.m. of unpaved land in the operational area adjacent .....

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e last 1= years, according to the third respondent. The allotment of land to additional 4th respondent by Airport Authority of India is on temporary basis for a period of three years up to 31.3.2014 as per the approval of Air Port Authority of India, New Delhi. A true copy of the lease agreement executed between the Airport Authority and the additional 4th respondent is produced as Ext.R3(a). The third respondent in their counter affidavit has submitted that the issue between the additional 4th .....

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celled and be returned to Airport Authority of India as held by it earlier. It has also been decided to take necessary steps to notify Airport Authority of India as the custodian for operating international courier cargo terminal as requested by the Airport Authority of India to resolve the present issue and commence the courier operations from Thiruvananthapuram International Airport at the earliest. Accordingly, the Commissioner of Central Excise & Customs, Thiruvananthapuram has been requ .....

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ourier terminal is valid up to March 2015 which would be renewed subsequently. It is further stated in the counter affidavit that the Commissioner of Central Excise & Customs vide their letter C.No.VIII/48/65/2012 Cus.(T)/ 11385 dated 23.9.2014 has intimated that the conditions to be fulfilled by Customs Cargo service provider, guidelines on safety and security of premises where imported or export goods are loaded, unloaded, handled or stored, the details of the measures taken to implement t .....

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an/customs cargo service provider. Further, the Commissioner of Central Excise and Customs has also informed that the lease agreement entered into with the 4th respondent which is valid up to March 2015 was made without the written approval of the Commissioner. Hence, steps are being taken by the Airport Authority of India to apply for the approval of the Commissioner with details of the terms and conditions of the agreement. A copy of Ext.R3 (a) lease agreement was forwarded to the Commissioner .....

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tment of custodian/customs cargo service provider as specified under Section 45 of the Customs Act, 1962. Thus, the third respondent has clarified the issue of custodianship and handling agent and commencement of international cargo at Thiruvananthapuram Airport. The definite stand taken by respondents 1 and 2 is that cost recovery charges is a mandatory requirement to be fulfilled by the third respondent under Handling of Cargo in Customs Area Regulations, 2009 unless specifically exempted by a .....

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