TMI Blog2021 (4) TMI 135X X X X Extracts X X X X X X X X Extracts X X X X ..... ere are no hesitation to reject the initial contention urged by the learned senior counsel for warehouse entity. This is because the said entity had not only received and stored goods but eventually delivered the same to the importer in the months of January and November 2012. Therefore, it would be rather futile to claim that the said entity falls out side the statutory definition of customs cargo services provider. The goods could not released only for the reason that they were detained by the customs authority. Clause 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 states that the customs cargo services provider shall not charge any rent or demurrage on the goods detained by the customs authorities - the importer cannot be fastened with any liability whatsoever. The statutory scheme is very clear. Whether the warehousing entity should be left utterly remediless? - HELD THAT:- The answer will have to be in the negative. The warehousing entity cannot be left remediless. The time-line or the sequence of events would speak for themselves. The goods had arrived way back in November 2010. The goods are edible items/perishable commodities. It is of course op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that the food safety concerns raised by the customs authorities were rather baseless. In fact, the customs authorities had referred the matter to the jurisdictional laboratory twice. Two of the consignments comprising whole betel nuts were released in January 2012. Since the warehouse entity was directed to release them without charging any rent, the warehouse entity complied with the said oral direction. As regards the remaining three consignments, the Assistant Commissioner, Customs House, Tuticorin took the view that there was under valuation. Therefore, notice was issued to the importer vide notice dated 03.05.2012, calling upon the importer to explain as to why the price declared by them should not be rejected. Questioning the same, the importer filed W.P.(MD)No.6961 of 2012. The importer also sought provisional release by waiving demurrage, rent and detention charges in terms of Handling of Cargo in Customs Areas Regulations, 2009. 2.Notice was ordered to the official respondents. Since there was no response forthcoming, the learned Single Judge by order dated 19.06.2012 in M.P.(MD)No.2 of 2012 in W.P.(MD)No.6961 of 2012 granted interim direction as prayed on payment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nch in W.A.(MD)No.548 of 2012. Therefore, W.P.(MD)No.6961 of 2012 can be closed. 8.The learned counsel for the importer would strongly contend that if any adverse order is passed by the customs authority, it would be patently hit by limitation. I leave the said issue open. W.P.(MD)No.6961 of 2012 is closed. 9.Now the question that arises for consideration is whether the direction given by the customs authority waiving the warehouse rent is valid or not. The learned senior counsel for the petitioner would contend that the warehousing entity cannot be made to suffer loss. He pointed out that the Hon'ble High Court has no where directed the customs authority to grant detention certificate waiving rent and that therefore the impugned communication on the face of it suffers from non-application of mind. According to him, the relationship between the parties is contractual and that the warehousing entity as a bailee is entitled to charge rent. He drew my attention to Section 63 of the Customs Act, 1962, which even enabled the warehouse keeper to sell the warehoused goods with the permission of the proper officer, if the warehouse charges are not paid in time. Of course, the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be rather futile to claim that the said entity falls out side the statutory definition of customs cargo services provider. 13.Once it is noted that the warehousing entity is a customs cargo services provider, then they are bound to discharge the responsibilities cast on them under Clause 6 of the Handling of Cargo in Customs Areas Regulations, 2009 and fulfill the conditions in Clause 5 Handling of Cargo in Customs Areas Regulations, 2009, 14.Clauses 5(5) and 6 of the Handling of Cargo in Customs Areas Regulations, 2009 read as follows:- 5.Conditions to be fulfilled by Customs Cargo Service Provider: The Customs Cargo Service provider for custody of imported goods or export goods or export goods and for handling of such goods in a customs area shall fulfill the following conditions, namely:- (1) ............. (2) ............. (3) ............. (4) ............. (5) Undertake to comply with the provisions and abide by all the provisions of the Act and the rules, regulations, notifications and orders issued thereunder. 6.Responsibilities of Customs Cargo Service Provider: (1) The Customs Cargo Service provider shall - (a) keep a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with the permission granted by the Deputy Commissioner or Assistant Commissioner of Customs; (l) subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be; (m) dispose off in the manner specified and within a time limit of ninety days, the imported or export goods lying unclaimed, uncleared or abandoned: Provided that the period of ninety days may be extended by the Commissioner of Customs by such further period as may be allowed, on sufficient cause being shown for delay in the disposal; (n) not make any alteration in the entry or exit points or boundary wall without the permission of the Commissioner of Customs; (o) shall bear the cost of the customs officers posted by the Commissioner of Customs on cost recovery basis and shall make payments at such rates and in the manner specified by the Government of India in the Ministry of Finance unless specifically exempted by an order of the said Ministry; (p) shall observe the Central Governmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rter. 16.Of course, I will have to deal yet another contention of the learned senior counsel. He would fall back on some of the provision of the Indian Contract Act, 1872 to drive home his point that the warehousing entity is a bailee and that therefore, it has charge on the goods warehoused by them. This contention will have to be negatived in view of the categorical judgement of the Madras High Court in Balaji Dekors Vs. Commissioner of Customs, Commissionerate-III, Chennai, reported in 2017 (356) E.L.T. 2019 (Mad.). The learned Judge had categorically held that the relationship between the parties is not contractual but one that involves the implementation of a statutory regulation. When the regulation uses the expression shall not charge any rent or demurrage , the warehousing entity is prohibited from charging any rent or demurrage during period of detention. Therefore, the order impugned in W.P.(MD)No.15985 of 2012 is sustained to the extent, it releases the importer of any obligation to pay any rent or demurrage. 17.The next question is whether the warehousing entity should be left utterly remediless. In my view, the answer will have to be in the negative. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
