TMI Blog2021 (7) TMI 401X X X X Extracts X X X X X X X X Extracts X X X X ..... eas Regulations, 2009. Definition of a certificate is that 'a document containing a certified statement especially as to the truth of something specifically a document certifying that one has fulfilled the requirements.' Therefore, the certificate issued under Regulation 6(1)(l) is to be construed for the purpose of eligibility for claiming refund pursuant to the conditions stipulated in Regulation 6(1)(l). In other words, the Customs authorities certified that the importer or exporter is eligible to claim refund, if any excess rent or demurrage is paid with reference to Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. Whether issuance of a certificate would provide a cause for seeking the relief of refund directly under Article 226 of the Constitution of India? - HELD THAT:- Presuming that the relief as such sought for in the present writ petitions is granted, merely based on the Detention certificate, in the absence of factual adjudication, undoubtedly, there is a possibility of commissions or omissions, which may lead to miscarriage of Justice. Therefore, the High Court need not go into such disputed facts merely based on the affida ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Thirumalaisamy Central Government Standing counsel, Mr. Rajnish Pathiyil Senior Central Government Standing counsel, Dr. R. Sunitha Sundar, Mr. Andrew Vivek, Mr. A. P. Srinivas ORDER The relief sought for in all the writ petitions is to direct the third respondent to act in compliance of the Detention Certificate dated 05.06.2018 issued by second respondent and direct the third respondent to refund the amounts collected by them at the time of clearance of the goods in question forthwith along with appropriate interest. 2. The petitioners in all the writ petitions are engaged in various spheres of business including the generation of electricity through means of renewable sources. The petitioners regularly imports various goods including goods such as 'Solar Panels'. The present petitions pertain to imports of Solar Panels made by the petitioners during the period 2017- 2018. 3. The learned counsel for the petitioners strenuously contended that the maintainability of the writ petitions is the core point, which is to be decided in these writ petitions. Once the writ petitions are maintainable, then the direction as sought for is to be granted, in view of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ckdrop, it is contended that the petitioner sent a detailed letter to the Customs Department on 11.03.2020, setting out the facts and circumstances, warranting an action against the third respondent by the Customs authorities. However, the said letter has not acted upon and thus, the petitioners are constrained to move the present writ petitions, seeking a direction to direct the second respondent, to direct the third respondent for refund of the amounts collected from the petitioners in accordance with the Detention Certificate. 6. However, the learned counsel for the third respondent intercepted and informed this Court that the third respondent had already considered grounds raised by the writ petitioners and a reply was communicated on 12.02.2020. The reply was issued pursuant to the legal notice issued by the petitioners to the third respondent on 10.12.2019. Thus, the grievances of the writ petitioners are considered and reasons were also furnished. 7. The learned counsel for the petitioners is of an opinion that the third respondent has no option, but to reject the refund in view of Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. The said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... claim of the importer or exporter. Thus, the writ petitions are not maintainable and by citing the judgment in the case of Vanathi Exports (cited supra), the petitioners cannot contend that the writ petitions are to be maintained and the relief as such sought for is to be granted. 10. The learned counsel for the third respondent solicited the attention of this Court with reference to Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 and contended that the Regulation indicates 'shall not charge any rent or demurrage on the goods seized'. Thus, the Regulation itself speaks about rent or demurrage and in the present cases, beyond rent and damage, the freight charges, transportation charges and other charges are also involved and therefore, complete adjudication is essential for the purpose of arriving a conclusion. As far as the Detention Certificate is concerned, the amount of refund or the disputed facts are not adjudicated and therefore, the mere Detention certificate would not provide a cause for the petitioners to maintain the writ petitions and therefore, the petitioners cannot adjudicate the disputed facts and in the event of any such gri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contract cannot be enforced by filing a writ petition or based on the Detention certificate issued by the competent authorities in the absence of any factual adjudication with reference to the disputes. 14. The question arises, how to decide whether any rent or demurrage on goods seized is charged, collected or recovered by the Customs Cargo Service Provider. In the present cases, the third respondent is the Cargo Service Provider and the petitioners have deposited some amount and seeks refund. The Customs authorities issued a certificate merely stating that the request of the Importer for waiver of Detention / Demurrage charges shall be considered from the date of filing of Bill of Entry till the date of clearance of the cargo. 15. Thus, this Court has to examine the nature of the certificate issued by the Customs authorities under Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. Definition of a certificate is that 'a document containing a certified statement especially as to the truth of something specifically a document certifying that one has fulfilled the requirements.' 16. Therefore, the certificate issued under Regulation 6(1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refund. However, the Detention certificate cannot provide cause for seeking a relief by filing the writ petitions under Article 226 of the Constitution of India. 20. The amount of deposit, the amount of refund, the period for which, the importer or exporter is entitled for refund and the other claims of the Customs Cargo Service Provider regarding freight charges, transportation charges etc., all are to be decided based on the terms and conditions of the contract entered into between the Customs Cargo Service Provider and the importer or exporter. In some circumstances, the importer or exporter pay such charges voluntarily on various reasons and all these facts and circumstances deserves an adjudication and the issues disputed are to be resolved and then only the question of refund would arise. 21. For example, a mere certificate in any circumstances, would not be a ground to claim refund directly from the Customs Cargo Service Provider. For all purposes, the authorities issued such certificate, enabling the exporter or importer to claim refund or otherwise in accordance with Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. 22. The Regulatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e is to be granted by following the procedures as contemplated. 26. In the present cases, the petitioners sought for a direction to the second respondent, to direct the third respondent. Such a direction is uncalled for, in view of the fact that the second respondent has already issued Detention certificate as per the provisions. It is contended that the second respondent is obligated to execute the Detention certificate. Such an execution cannot be done without adjudication of the disputed facts and circumstances. This apart, as observed earlier, mere certificate would not confer any right to claim refund and such a certificate would enable the holder to claim refund under Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 and all further adjudications or disputes with the Customs Cargo Service Provider is to be undertaken by approaching the competent forum and certainly, not a writ proceedings. 27. The direction sought for in the writ petitions to direct the second respondent, to direct the third respondent to make refund is coined with an idea to overcome the maintainability of writ petitions. Thus, the prayer as such cannot be granted, in view ..... X X X X Extracts X X X X X X X X Extracts X X X X
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