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All Cargo Logistics Ltd., Ameya Logistics Pvt. Ltd., Apollo Logisolutions Ltd., Ashte Logistics Pvt. Ltd., Continental Warehousing Corporation (Nhava Sheva) Ltd., EFC Logistics India Pvt. Ltd., Gateway Distriparks Ltd., International Cargo Terminals & Infrastructure Pvt. Ltd., Kerry Indev Logistcs Pvt. Ltd., Ocean Gate Container Terminals Pvt Ltd., Take Care Logistic Park (India) Pvt. Ltd., TG Terminals Pvt. Ltd., Seabird Marine Services Pvt Ltd., Adarsh Hegde, Ashish Dhurvendra Goel, Pisipati Sri Siva Prasad, Rajkumar Khemchand Rawlani, Versus Union of India, Chief Commissioner of Customs, & Others

2017 (6) TMI 309 - BOMBAY HIGH COURT

Development of CFS - validity of public notices - compulsory imposition of DPD facility - importers find it difficult to make the logistical arrangements necessary to evacuate RMS facilitated containers through DPD from the terminal - Held that: - silence of the petitioners and parties like them for more than 8 years is eloquent enough. This only indicates that so long as there is no threat to their business opportunity or their commercial interest, the petitioners or their representative associ .....

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. 66 of 2008 has the effect of arbitrarily and unreasonably discriminating against the members of the association. They do not enjoy a level playing field for providing their services. However, it is apparent from a reading of this representation at page 107 of the paper book that the same refers to the earlier Public Notice No. 66 of 2008 dated 11th September, 2008. We have already set out as to how no grievance was raised for more than 8 years when the arrangement and particularly of designati .....

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as mentioned in Anexure ‘A’ enclosed to this public notice. The other conditions mentioned in public notice dated 28th November, 2016 will remain the same. Therefore, there is an enlargement and extension of facility to those importers whose names are mentioned in Annexure ‘A’. - Public Notice Nos. 8 and 9 of 2017 - Held that: - In the first notice of 2017 (Public Notice No. 8 of 2017 dated 16th January, 2017), the office of the Commissioner of Customs refers to the representations by vario .....

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is already preparing a logistic solution in the form of engaging 5-7 major transporters, who will provide transport services to DPD clients in efficient manner and evacuation of containers from terminal will take place on best pick up basis. This will facilitate further rationalisation of shifting charges being charged by terminal operators. The DPD clients can avail the aforesaid logistic solution. - Public Notice No. 16 of 2017 - Held that: - Point wise clarification/procedural requireme .....

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hat container is released to DPD importer only after issue of delivery order even in case where CFS is logistic service provider. Therefore, the further documents that are required to be obtained by DPD importer, before the consignments are cleared, would ease the movement in the sense if advance intimation is submitted by DPD importer to shipping lines, then, the shipping lines can access the CFS. That is how this public notice has been issued. - The limited tender notice dated 17th March, .....

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eared beyond prescribed period and certain other circumstances as specified in the public notices. It is in that sense the participation in the limited tender is not restricted nor does it perpetuate the alleged monopoly of respondent no. 9. Even the respondent no. 9 cannot claim a absolute right simply because it can only receive such containers/goods which are not cleared by the importers within the above time limit of 48 hours. Thus, there is a arrangement devised to move such cargo/goods out .....

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ohan Rajadhyaksha, Mr. Adhip Iyer, Mr. Cheryl Fernandes and Mr. Divij Joshi i/b. M/s. AZB and Partners for the petitioners. Mr. Anil C. Singh-Additional Solicitor General with Mr. Pradeep S. Jetly and Ms. Indrayani Deshmukh for respondent nos. 1 to 7. Mr. Birendra Saraf and Mr. Yuvraj K. Singh i/b. M/s. Desai and Diwanji for respondent no. 9. JUDGMENT :- (Per S. C. Dharmadhhikari, J.) 1. Heard the learned counsel appearing for the parties. Rule. The respondents waive service. By consent, Rule is .....

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blic notices, which are sought to be quashed in their entirety, as far as this public notice is concerned, the petitioners pray quashing and setting aside of para 4.9 of the same. 5. The petitioners are also seeking quashing and setting aside of appointment of respondent no. 9 as the Designated Container Freight Station (CFS) by the impugned Public Notice No. 161 of 2016 dated 28th November, 2016. 6. The petitioners are also challenging paragraphs 3.7 and 3.8 of the Facility Notice No. 63 of 200 .....

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ed against the Union of India, the Chief Commissioner of Customs and other authorities and officials functional under the Customs Act, 1962 (respondent nos. 2 to 6). Respondent no. 7 is the Central Board of Excise and Customs, whereas, respondent no. 10 is the Assistant Commissioner of Customs, CFS Management Cell, Jawaharlal Nehru Customs House (JNCH), who has issued the tender notice dated 17th March, 2017. Respondent no. 8 before us is the Association of the Container Freight Stations, agains .....

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possible time. This was more so when the ports in India were facing congestion at their premises on account of growth in import and export volumes as a result of the liberalization of the economy. Therefore, for optimal utilisation of existing infrastructure, space and equipment the goods that landed at ports needed to be evacuated straight away without any loss of time. Accordingly, the concept of CFS was introduced and grew in importance along with the development and growth of ports. The idea .....

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th February, 2017 that CFSs are extension of the port. In the over all ecosystem of customs clearance, the CFSs have played an important role in faster clearance of EXIM goods, as a result, bulk of the regulatory activity other than appraising has shifted to CFSs. Copy of Circular No. 4 of 2017 is annexed as Exhibit 'B' to the petition. 12. Accordingly, several CFSs, including the petitioners' have been set up and the registration and functioning of all CFSs is governed by the Handli .....

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a CFS files an application in the prescribed format to the Infrastructure Division at Ministry of Commerce, New Delhi. In order to be eligible for applying, an applicant has to inter alia acquire a minimum of 5 acres of nonagricultural land, which requires a significant expenditure; (ii) Upon receiving approval, the applicant is required to set up the infrastructure within one year from the date of the approval. This requires a substantial investment for constructing the CFS, which involves the .....

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e requirements of also housing a bank branch, cafeteria, canteen in the CFS; e) Purchasing and setting up of sophisticated cargo handling equipments such as cranes, reach stackers, empty handlers, truck trailers, fork lifts etc.; f) Purchase and set up security equipments such as CCTV cameras, sniffer dogs, metal detectors etc. (iii) Once the infrastructure is set up, the Commissioner of Customs inspects the facility and upon being satisfied of the infrastructure and security standards, notifies .....

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fication, the CFS is permitted to begin operations. 13. Thus, significant efforts, time and expenditure is incurred in order to set up a CFS and make it operational. 14. The petitioners submit that in order to fully appreciate the controversy involved in the present writ petition, it is necessary to first briefly set out the process of import of cargo into India and the role played by a CFS in the said process, which is as follows:- (i) The carriage of goods by sea commences upon receipt of the .....

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ails, the name of the consignee, marks and number on the cargo, number of packages, weight of the cargo, port of loading, port of discharge in India and final destination, container number and size of the container and also whether the containers are Full Container Load (FCL) or less than container load where cargo in the container belongs to several consignees (LCL). The IGM also indicates whether a cargo is to be sent to a CFS or to a particular Inland Container Depot (ICD). Subsequently, on a .....

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her, the IAL also provides details of the destination of the container, including the name of the port and the preferred CFS. A sample IAL is annexed as Exhibit 'D' to the petition. (iv) Thereafter, the vessel berths at the POD. After berthing of the vessel, the customs inwards clearance takes place, where the Customs authorities board the vessel and check the vessel's documents like statutory certificates, bonded items, fuel, fresh water, crew personnel declaration etc. In some inst .....

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es are meant for CFS, an Equipment Interchange Receipt (EIR) is issued by the terminal and is usually given to the representative of the CFS at the terminal (normally the driver of the trailer appointed by CFS). This document is issued by terminal when the cargo exits the terminal gate. A sample EIR is annexed as Exhibit 'E' to the petition. (vii)The containers, with the cargo, are then evacuated from the port by the CFS under a Customs Bond given by the CFS for the completion of the cus .....

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clearing dues of the shipping lines. This delivery order is addressed to the custodian i.e. Port Terminal, CFS or ICD instructing them to give physical delivery of the cargo to the consignee. The delivery order is then presented to the CFS for taking delivery of the container from the CFS. A sample delivery order is annexed as Exhibit 'F'. (ix) Thereafter, the consignee completes the Customs documentation and requirements after which the Customs authorities give an endorsement out of cha .....

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mporters who have demonstrated capacity and willingness to comply with the laws the Customs Department is required to implement. Under the RMS, bills of entry filed by importers in the Exchange Data Interface (EDI) system of the Indian Customs authorities would be processed for risk and a larger number of consignments would be allowed clearance based on the importer s self assessment without examination. At this stage, this facility was available only to certain select importers who fulfilled th .....

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G . 16. On 1st September, 2008, respondent no. 3 issued Facility Notice No. 63 of 2008. That notice, inter alia, provided for DPD facility (i.e. for importers to take delivery directly from the port terminal) to ACP importers (as per Public Notice No. 64 of 2005) and to 100% Export Oriented Units (EOUs) for FCL containers covered by the RMS or where no examination is required. The petitioners state that under the DPD facility, delivery of the containers would be done at the port itself and ther .....

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of DPD container traffic, therefore, was minimal. In fact, until June, 2016 only 26 importers were permitted to avail of the DPD facility. However, as elaborated, later, the number of importers eligible for DPD facility has suddenly been extended to more than 700 importers. 18. On 11th September, 2008, respondent no. 3 issued Public Notice No. 66 of 2008, whereby, Speedy/respondent no. 9 was appointed as the designated CFS for the purposes of moving DPD containers not cleared from the port as pe .....

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FSs. Copy of Public Notice No. 66 of 2008 is annexed as Exhibit I to the petition. 19. The petitioners further submit that this optional DPD facility, though it included the appointment of Speedy/respondent no. 9 as the designated CFS in the most arbitrary manner, did not cause serious threat to the business and existence of other CFSs like the petitioners at that point of time. 20. The petitioners state that on account of Public Notice No. 161 of 2016, there has been a rise in the volume of DPD .....

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e was an increase in the number of DPD containers that were sent to the designated CFSs i.e. Speedy/respondent no. 9 on account of not being collected within the period of 48 hours prescribed by Public Notice No. 161 of 2016, as illustrated in further details below. 21. On 28th November, 2016, respondent no. 4 issued Public Notice No. 161 of 2016 with effect from 1st December, 2016, extending the DPD facility to a list of 467 named importers from 26 importers as late as July, 2016 by relaxing th .....

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CFS to receive all DPD containers, which were not cleared in 48 hours, was arbitrary and amounted to discrimination against its members. Respondent no. 8 also set out the prejudice caused to CFSs on account of the fact that with the relaxation of the norms for importers to avail of DPD facility, the number of containers which would go to Speedy/respondent no. 9 as the designated CFS on account of not being cleared from the port in 48 hours would also increase. Moreover, respondent no. 8 also mad .....

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t no. 8, on 19th December, 2016, respondent no. 5 issued Public Notice No. 180 of 2016 and extended the DPD facility to a further list of 214 named importers mentioned in Annexure A to Public Notice No. 180 of 2016. The petitioners state that as a result of Public Notice No. 180 of 2016, the number of DPD containers increased still further, resulting also in a concomitant further increase in the number of DPD containers sent preferentially to Speedy/respondent no. 9 on account of not being clear .....

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the DPD facility. In the said advisory, respondent no. 5 directed that FCL containers imported by importers who have been accorded the DPD facility as per Public Notice No. 161 of 2016 and Public Notice No. 180 of 2016, which are facilitated by RMS and meant for DPD, shall not be accepted at any CFS. Respondent no. 5 also stated that non-compliance of this by a CFS would be viewed seriously and action shall be initiated as per the Customs Act, 1962. A copy of the advisory dated 27th December, 20 .....

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at least 72 hours to the shipping line, inter alia, regarding the DPD code of the importer and the preferred CFS of the importer. The petitioners state that notwithstanding a preferred CFS being indicated by the importers, with the exception of containers that are out of charge i.e. where the import/customs formalities have been completed, all the DPD containers that are not out of charge and are not cleared in 48 hours are being sent to Speedy/respondent no. 9. Further, Public Notice No. 8 of 2 .....

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ce No. 8 of 2017 further clarifies that only in the event that a container is not RMS facilitated, the DPD facility would not be available for the same and the container would be routed through a CFS. 27. Therefore, Public Notice No. 8 of 2017 has the effect of overriding the choice of CFS mentioned in the IGM and the compelling/forcing the DPD facility on the DPD eligible importers even if they have not opted for DPD and directs that if such RMS facilitated containers are not cleared in 48 hour .....

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t to make the logistical arrangements necessary to evacuate RMS facilitated containers through DPD from the terminal, because of the following reasons. (i) Difficulty in the arrangement of a transporter; (ii) Risk of theft; (iii) Issue of insurance; (iv) Two shift handling charges being charged by private terminal operators. (v) Dealing with non-RMS containers; (vi) Requirement of temporary storage for Customs cleared cargo or warehousing facility, owing to lack of storage space in the importers .....

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017 is annexed as Exhibit P to the petition. 30. On 16th January, 2017, respondent no. 8 addressed another letter to respondent no. 2 in response to the abovementioned advisory dated 27th December, 2016, issued by respondent no. 5 to CFSs to the effect that serious action would be taken against CFSs if containers, which are earmarked for DPD, are accepted by a CFS. Respondent no. 8 indicated that CFSs do not move the containers from the port on their own (the same being on the basis of the IGM f .....

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by respondent no. 8. In this letter, respondent no. 6 stated as follows:- (i) That the procedure prescribed in Public Notice No. 161 of 2016 for moving DPD containers to Speedy/respondent no. 9 in the event that they are not cleared in 48 hours will apply only to provide for circumstances of exceptional nature i.e. when any DPD importer could not clear goods within 48 hours of landing. Respondent no. 6 also stated that in view of the various measures taken to provide ease of doing business, exte .....

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o. 9 was appointed as the designated CFS purportedly on account of the fact that it is the closest CFS to the port and therefore, transporting the containers to Speedy/respondent no. 9 would avoid congestion on the roads. The petitioners state that this is a clear afterthought since Public Notice No. 66 of 2008 which appoints Speedy/respondent no. 9 as the designated CFS does not mention any such reason. In any event, respondent no. 6 has totally failed to appreciate that there are other CFSs, i .....

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ary or unfair. The petitioners state that this contention ignores the fact that in reality the said permissions are not granted as a matter of course (in fact, as few as 28 permissions have been granted till date) and in any event, the period of 48 hours is largely insufficient to obtain this permission and therefore, the DPD containers nevertheless end up going to the designated CFS i.e. Speedy/respondent no. 9 at the end of 48 hours. (iv) That no contract has been awarded to any particular ent .....

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t giving any opportunity to any other CFS to bid or compete for the same. 32. A copy of the letter dated 18th January, 2017 addressed by respondent no. 6 to respondent no. 8 is annexed as Exhibit R to the petition. 33. On 9th February, 2017, respondent no. 6 issued Public Notice No. 16 of 2017, whereby, it was reiterated that in cases where importers eligible for the DPD facility of RMS facilitated containers do not obtain clearance from respondent nos. 2 to 6 i.e. a Customs out of charge is not .....

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ncluding the petitioners, directed all CFSs, including the petitioners to support DPD facilitation of RMS containers and stated that any containers not cleared by the importers within a period of 48 hours would be subjected to stringent examination. A copy of the minutes of the meeting held on 19th January, 2017 are annexed as Exhibit T to the petition. 35. On 6th March, 2017, respondent no. 5 issued Public Notice No. 27 of 2017, which, inter alia, placed the obligation on CFSs, including the pe .....

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copy of the petition was served upon the respondents on 17th March, 2017. Immediately, on receipt of the copy of the petition, respondent nos. 1 to 6 issued a limited tender notice dated 17th March, 2017 through respondent no. 10 for inviting bids from all CFSs registered as Customs Cargo Service Provider (CCSP) under the HCCA Regulations, 2009 for being appointed as the designated CFS for delivery of DPD containers from port terminals of JNCH, Nhava Sheva to CFSs, if the importers fail to clea .....

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Cell, Nhava Sheva, Taluka Uran, District Raigad, by which, in addition to various other measures undertaken to reduce the dwell time and transaction cost to the importers/trade, additional facility, in terms of direct port delivery code and importer s choice of CFS code has been permitted to the importers/trade. This has resulted in a dramatic reduction of DPD containers not cleared from Customs within 48 hours. In the Month of February, 2017, the number of such DPD containers going to Speedy/r .....

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ainers till 22nd March, 2017. Thus, reliance is placed on a copy of the data sheet with regard to clearance of DPD containers from the port terminal. Therefore, there cannot be any grievance and if at all there was one, it has been redressed. Hence, the petition be rejected. 39. Then, it is explained in the further paragraphs that the rationale and the reason for extending DPD to RMS facilitated cargo (where no examination is required) is that earlier such containers were routed through CFSs onl .....

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Excise and Customs, facilitation notices, but they forget that they are Customs Cargo Service Providers within the meaning of HCCA Regulations, 2009 made by the Central Board of Excise and Customs in exercise of powers conferred by sub-section (2) of section 141 read with section 157 of the Customs Act, 1962. In para 8 of this affidavit, the notifications of the Ministry of Shipping and Transport (Port Wing) are referred. It is then stated that one CFS attached Jawaharlal Nehru Port Trust (JNPT) .....

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f the facility notice is referred, by which, all concerned were informed that the commissioner of Customs would notify the designated CFS. The Commissioner of Customs, JNCH issued Public Notice No. 66 of 2008 dated 11th September, 2008 notifying Speedy Multimode Ltd. as the designated CFS. 41. The justification for the issuance of these notices is provided in para 11 of this affidavit, which reads as under:- 11. I say that the Commissioner of Customs, JNCH, considering the administrative require .....

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ling on what Speedy Multimodes Ltd., CFS can charge. It cannot charge in an arbitrary manner. This decision was taken by the commissioner of Customs, JNCH, considering Public Interest, so that any default evacuation of containers [beyond 48 hours] will avoid congestion on the road and also to reduce the Transaction cost of Importers/Trade. 42. Then, what is relied upon is a letter of the Chairman, JNPT dated 29th November, 2016, copy of which is annexed as Exhibit 6 to the affidavit in reply. It .....

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ned in paras 9 to 11 of the reply affidavit. 43. Further, the justification provided for the impugned actions is that the same is in line with the view expressed by the Madras High Court in the case of Container Shipping lines association vs. Union of India . A copy of this judgment is annexed as Exhibit 7 to the affidavit. Hence, what is objected to is the designation of respondent no. 9, but if one bears in mind the object and purpose of the public notices, particularly of doing business and r .....

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t in reply, it is urged as under:- 16. I say that in this regard, a Limited Tender Notice for inviting bids from all CFS registered as CCSP with JNCH, has been floated, on 17-03-2017 by JN Custom House for designation of CFS for delivery of DPD Containers from Port Terminals of JNCH, Nhava Sheva to CFS, if not cleared beyond the prescribed period and under certain other circumstances. Hereto annexed and marked as Exhibit 8 is a copy of the Limited Tender Notice. 17. I say that in this regard, th .....

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s. They are not aggrieved. It is the CFS who have approached this Honourable Court. I say that the Petitioners have failed to make out a case for the intervention of this Honourable Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India. I say that the actions of the Revenue are all aimed at achieving the single object of facilitating all stakeholders. Without prejudice to what is stated above, I will now deal with the various paras of the petition as .....

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nd other port terminals being at approximately 1,20,000 Twenty Feet Equivalent Units (TEU), even if 40% of the import containers are cleared as DPD containers, which is around 48,000 TEUs, there would be approximately cost saving up to ₹ 48 crores to the importers/trade. Thus, how the petitioners can be aggrieved against extension of DPD to importers by Customs or by terminals has not been clarified. Thus, there being no right vesting in the petitioners, the petition is motivated and filed .....

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erest. For these reasons, the writ petition be dismissed. In the passing, it is mentioned that the choice of the CFS is available to importers and the procedure to avail the option is also very simple. There is no need to visit the office and by e-mails, the same is finalized. 46. To this affidavit in reply, which is filed on 23rd March, 2017 and is fairly lengthy and detailed, a rejoinder affidavit is submitted by the petitioners. The rejoinder states, apart from reiterating the challenge in th .....

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are baseless and without any merits. The issuance of tender notice does not redress the grievance of the petitioners, as set out in the petition nor does it render the petition infructuous. The petitioners do not contend that they should be appointed as a designated CFS or there should be a limited tender. The petitioners are not confining nor restricting their challenge to the appointment of respondent no. 9 as designated CFS. They are aggrieved by the impugned public notices because they over .....

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to DPD eligible containers, regardless of whether such container has received an out of charge from Customs, being delivered to the CFSs of the importers choice after expiry of 48 hours period within which they are to be cleared by the importers as per Public Notice No. 161 of 2016. However, this stand is contrary to Public Notice No. 27 of 2017, which clarifies that only those containers which have received an out of charge from Customs within 48 hours can be sent to the CFS preferred by the im .....

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c notices. Instead of allowing all the petitioners as well as other CFSs an equal opportunity to participate in the DPD regime, the impugned public notices seek to limit participation in the same to a single designated CFS, which is discriminatory, arbitrary and violative of the mandate of Article 14 of the Constitution of India. Therefore, it is not as if a limited tender notice being issued that the grievances of the petitioners do not survive. The petitioners state that the challenge has been .....

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e is a ceiling on the amount charged by respondent no. 9 to the importers. There is no reduction of cost either. Hence, the impugned action is not in public interest and deserves to be struck down. This affidavit in rejoinder is filed on 30th March, 2017. 47. It is on the above material that we have to consider the rival contentions. 48. Mr. Dwarkadas, learned senior counsel appearing for the petitioners, invited our attention to all the public notices to submit that it is the importers choice t .....

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19(1)(g) of the Constitution of India. Mr. Dwarkadas also submits that there is a violation of the mandate of Article 14 of the Constitution of India, inasmuch as by failure to clear the containers even by the DPD mode within the stipulated time results in no penalty on the importers, but it deprives the petitioners of their rights for all such containers, which are nor cleared, irrespective of the choice of the importers, are then sent to respondent no. 9. This is a clear discrimination in favo .....

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unduly harsh and unreasonable step, which violates the mandate of Article 14 of the Constitution of India. Mr. Dwarkadas then submits that there is no public purpose being achieved, as the congestion at the port has not been reduced at all by the impugned actions. Mr. Dwarkadas submits that respondent no. 9 s interest cannot be compared with the petitioners for the petitioners cannot be compensated by issuance of a limited public tender. The petitioners grievances and as highlighted in the peti .....

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, who bear the financial burden. That is not to be borne by the petitioners at all. It is in these circumstances that all the actions have been taken in larger public interest and to reduce the congestion at the port. The clearance of the cargo is expedited. The petitioners have no vested right and they cannot, in the process of challenging the measures initiated by the authorities, seek to further their commercial interest. If at all an importer has indicated his choice of a CFS and that choice .....

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it petition be dismissed. 51. For appreciating these contentions, a reference will have to be made to the Customs Act, 1962. It is an Act to consolidate and amend the law relating to Customs. The Statement of Objects and Reasons to the unamended and amended act would indicate as to how the enactment provides for the levy of duties of Customs. That is to discourage smuggling. Further, the trade has been pressing for certain changes and facilities. It is in these circumstances that the earlier Act .....

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the existing provisions. Therefore, the Bill seeks to curtail the period of warehousing, prescribe the increased rate of interest on duty leviable on the warehoused goods, ensure prompt payment of duty and impose interest on delayed payments of duty. There is a desire to expedite the realization of revenue and discourage indiscriminate warehousing of imported goods. Once the changes ensure prompt payment of duties by imposing a time limit, then, we do not see how there is any difficulty present .....

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and warehoused goods in section 2(44). By Chapter II, the officers of Customs and their classes are indicated. By Chapter III, appointment of Customs ports, airports etc. is dealt with. By Chapter IV, section 11 is inserted, which deals with prohibitions on importation and exportation of goods. Chapter IV-A deals with detection of illegally imported goods and prevention of the disposal thereof. Likewise, Chapter IV-B provides for prevention or detection of illegal export of goods. There is a po .....

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rival of vessels and aircrafts in India to exemption of certain classes of conveyances from certain provisions of this Chapter . By Chapter VII, clearance of imported goods and export goods is a matter dealt with. The goods in transit have to be dealt with in the manner set out in Chapter VIII. Then comes an important Chapter and namely Chapter IX dealing with warehousing . There, licencing of public and private warehouse and special warehouse is provided. Section 60 deals with permission for re .....

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rrest. Chapter XIV deals with confiscation of goods and conveyances and imposition of penalties. We are not concerned with Chapter XIVA dealing with settlement of cases and Chapter XV dealing with appeals and revision so also Chapter XVI dealing with offences and prosecutions. The miscellaneous provisions are contained in Chapter XVII and section 141 falling thereunder reads as under:- 141. Conveyances and goods in a customs area subject to control of officers of customs. - (1) All conveyances a .....

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-section (2) by Act 18 of 2008, would indicate that all conveyances and goods in a customs area shall, for the purpose of enforcing the provisions of this Act, be subject to the control of officers of Customs and the imported and export goods may be received, stored, delivered, dispatched or otherwise handled in a Customs area in such manner as may be prescribed and the responsibilities of persons engaged in the aforesaid activities shall be such as may be prescribed. The word conveyances is def .....

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in section 2(13) to mean any customs port, customs airport or land customs station. Finally, the word prescribed is defined by section 2(32) to mean prescribed by regulations made under this Act and the word regulations is defined in section 2(35) to mean the regulations made by the Board under any provision of this Act. Thus, what we have before us is a scenario where neither the power to make regulations nor the regulations themselves are challenged. However, for a completion of the legal regi .....

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of a bill of entry, shipping bill, bill of export, import manifest, import report, export manifest, export report, bill of transhipment, declaration for transhipment, boat note and bill of coastal goods; (ai) the manner of export of goods, relinquishment of title to the goods and abandoning them to customs and destruction or rendering of goods commercially valueless in the presence of the proper officer under clause (d) of sub-section (1) of section 26-A; (aii) the form and manner of making appl .....

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ng process or other operations may be carried on in a warehouse under section 65; (d) the manner of conducting audit of the assessment of duty of the imported or export goods at the office of the proper officer or the premises of the importer or exporter, as the case may be. 55. Once we have a general power to make regulations so as to carry forward the object and purpose of the Act or carry out the same additionally by invoking sub-section (2) of section 157, the Board can make regulations cons .....

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ll sections and provisions preceding and following the same. If all these are read together and harmoniously, then, it is apparent that the regulations empower regulating the movement of cargo in customs area. That also enables regulating the movement of cargo and containers from the terminal to the CFS in the larger interest of trade and public. Mr. Singh learned Additional Solicitor General is right in referring to the HCCA Regulations, 2009. They have been made by the Central Board of Customs .....

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, storage, delivery, dispatch or otherwise handling of imported goods and includes a custodian and persons as referred to in section 141(2) of the Customs Act, 1962. Once the handling of the cargo in customs area is in accordance with the regulations and the regulations are specifically made for that purpose, then, it is futile to contend that the officials in-charge of implementing the Act and the Regulations cannot issue the public notices. The public notices and the notifications referred abo .....

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ulate the entry of goods in the customs area for efficient handling of such goods. There is a discretionary power conferred in the commissioner by this regulation. Further, the handling of goods in the customs area is a matter specifically dealt with by sub-section (2) of section 141. Thus, regulations can be made so as to prescribe the manner in which the imported or export goods may be received, stored, delivered, despatched or otherwise handled in the customs area. The regulations can also se .....

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They can, with the aid of these regulations and framed by the Board, control the receipt, storage, delivery, despatch or otherwise handling of the imported or export goods in customs area. If sub-section (2) of section 141 enables the Board to make regulations for this purpose so as to assist the officers of Customs in performing their functions and duties, then, all the more there is no substance in the contentions of Mr. Dwarkadas that the officials lack the power or jurisdiction to issue the .....

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ok, the Central Board of Excise and Customs has dealt with the subject of designation of customs clearance facilities as ICDs or CFSs. The Board circular dated 8th June, 2009 purports to clarify the issue with reference to the legal provisions. In paras 8 and 9, the circular issues advise to the Jurisdictional Commissioners. If the proposed facility is required to be approved as an ICD or CFS and whether such facility fulfills the laid down guidelines, infrastructure requirements specified in th .....

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ification of levy of MOT charges in CFSs attached to 24X7 port. We need not refer to this circular in further details, but suffice it to indicate that the Central Board of Excise and Customs has empowered the Jurisdictional Commissioners, by proper authorization, to provide such facility as is required for ensuring early clearance of the goods. 60. Annexure H is a copy of Facility Notice No. 63 of 2008. The subject of this notice is facility of direct port delivery to select importers . The noti .....

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in the petition itself, have referred to these arrangements made. They also refer to Public Notice No. 66 of 2008, whereby, respondent no. 9 was notified as a designated CFS. Thus, it is apparent that on 11th September, 2008 itself the appointment of respondent no. 9 was notified. Beyond alleging that the appointment of respondent no. 9 is arbitrary and that is made without any opportunity to the petitioners or other CFSs, we do not find any challenge raised to these arrangements. The only plead .....

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or their representative association do not complain. The complaint now is motivated by pure commercial considerations. In these circumstances, the contesting respondents are right in their submission that we cannot take into account the petitioners commercial consideration or business prospects in dealing with the challenge raised in the writ petition. Article 19(1)(g) of the Constitution of India protects certain rights and particularly to practice any profession or to carry on any occupation, .....

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eral public, the law may impose restrictions on the freedom of the citizen to start or carry out his business. Such a law cannot be, therefore, struck down as violative of the mandate of Article 19(1)(g) of the Constitution of India. A business loss to a particular person or diminution in profits cannot be, therefore, the ground on which any action, which is in public interest, can be interfered with. Therefore, at the instance of the petitioners, the present public notices cannot be quashed and .....

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er to reduce dwell time and cost associated with import at Nhava Sheva, it has been decided to extend DPD permission to importers as mentioned in Annexure A enclosed to this public notice subject to the conditions set out in this public notice. It is clarified that this facility has been extended to the said importers on the basis of the volume of transactions and on the basis of assessment made by the office of the Commissioner of Customs, NS-III, Mumbai Customs Zone-II, JNCH, Nhava Sheva regar .....

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represents the interest of 24 CFSs, who are its members. The designation of Speedy in Public Notice No. 161 of 2016 read with Public Notice No. 66 of 2008 has the effect of arbitrarily and unreasonably discriminating against the members of the association. They do not enjoy a level playing field for providing their services. However, it is apparent from a reading of this representation at page 107 of the paper book that the same refers to the earlier Public Notice No. 66 of 2008 dated 11th Septe .....

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acility reduces the time and cost for importers considerably. In order to reduce dwell time and cost associated with import at Nhava Sheva, it has been decided to extend DPD permission to importers as mentioned in Anexure A enclosed to this public notice. The other conditions mentioned in public notice dated 28th November, 2016 will remain the same. Therefore, there is an enlargement and extension of facility to those importers whose names are mentioned in Annexure A . Yet again, the eighth resp .....

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ainer traffic. It is apparent that the CFS association does not have a real, genuine and serious grievance about the facility and designation of respondent no. 9, but desire a participation and involvement of their members as well. 65. The reference is then made to an advisory dated 27th December, 2016 issued by the fifth respondent, copy of which is at page 132 of the paper book. That reads as under:- No. S/22-Gen-100/2016-17AM(I) Date 27.12.2016 To, The Manager, Navkar Corporation Ltd. Somatan .....

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ntainers imported by Importers who have been accorded Direct Port Delivery as mentioned above and which have been facilitated by RMS and are meant for Direct Port Delivery shall not be accepted at CFS. Non compliance of the above direction will be viewed seriously and action will be initiated as per the provisions of the Customs Act, 1962. (Dhirendra Lal) Addl. Commissioner of Customs (Import) NS - I, III & V 66. Then, what we have on record are two public notices dated 16th January, 2017. T .....

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t-wise clarification/procedural requirements are set out in this public notice. In Public Notice No. 9 of 2017, there is a reference made to meetings with the CFSs within the jurisdiction of JNCH, at which, their views were solicited in order to find a solution to logistic arrangements. It was discussed that the JNPT is already preparing a logistic solution in the form of engaging 5-7 major transporters, who will provide transport services to DPD clients in efficient manner and evacuation of con .....

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sing the logistic arrangements. We do not see any reason for the contesting respondents to consider these grievances favourably. The public notices only lay down a policy and when the policy decision is aimed at reducing the port congestion, facilitating the expeditious movement of imported cargo and by which, there is an ease of doing business, then, all the more we do not see any reason to interfere with the same. There is a clarification given by the office of the Commissioner of Customs on 1 .....

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cleared within 48 hours and if for exceptional reasons it cannot take place, then, there are clear directions in that regard. There is a justification provided, namely, that as an administrative arrangement for nominating a CFS in transparent manner, the CFS closest to the port terminal has been nominated. Hence, Speedy Multimode CFS, which is located nearest to the port terminal was designated as default CFS. This was done considering public interest so that any default evacuation of containers .....

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of 2017 dated 9th February, 2017, therefore, carries the matter further. However, the basic policy decision has already been taken by earlier public notices. This point-wise clarification further elaborately sets out the procedural requirements. There are meetings held with the stakeholders as well. 70. It is in these circumstances that we do not find any reason to interfere with the said public notices. Even Public Notice No. 27 of 2017 dated at Exhibit U at page 153 refers to these very aspec .....

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n the sense if advance intimation is submitted by DPD importer to shipping lines, then, the shipping lines can access the CFS. That is how this public notice has been issued. It has been issued by those dealing with administration of the port and the operations at the same. In other words, those officers, who are empowered by the Customs Act, 1962 and those who are administering the port and managing affairs at the same are acting in coordination so that there is ease of doing business. None of .....

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er Article 226 of the Constitution of India. We do not find anything arbitrary, unreasonable or unfair in the actions of these respondents. All the more, when they have ensured transparency in the process of designation. The representation that is made and copy of which is at page 154-A of the paper book would indicate that not only the petitioners and respondent no. 8 are aggrieved and dissatisfied with the public notices, but when the Commissioner introduced transparency in the designation or .....

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to the detriment of the other CFSs. Now other CFSs have an opportunity to participate in the appointment or designation process. Even then they are complaining because they do not want a designation at all. They do not want a designation for they are not interested in early or expeditious clearance of the consignments at the port and reduce the congestion at the port. If there is a confusion, chaos and delay then, that may be advantageous to the petitioners, but it would be certainly detrimenta .....

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