TMI Blog2023 (2) TMI 681X X X X Extracts X X X X X X X X Extracts X X X X ..... re, this regulation is subject to Section 63 of Customs Act which provides for the right of warehouse keeper to levy rent and warehouse charges and Section 63 was in force when CONCOR denied the waiver of TSC to the Petitioner. On perusal of Section 127F of the Customs Act, it is clear that the Settlement Commission is provided the power to impose any penalty or fine under the Customs Act only. Further, Section 127F of the Customs Act explicitly states that in addition to powers conferred on the Settlement Commission under Central Excise Act, 1944, the Settlement Commission also have all the powers which are vested in an officer of the customs under the Customs Act or the rules made thereunder. Therefore, the Settlement Commission is acting as a custom authority only while settling the cases under the Customs Act as it has all the powers that are vested in officer of the customs. This Court does not agree with the contention of the learned counsel for the Petitioner that when the penalty is imposed by the Settlement Commission which is an independent body constituted under the Section 32 of Central Excise Act, 1944, then the policy of CONCOR would not apply to the Petitioner. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions of Handling of Cargo In Customs Area Regulations, 2009 in as much, the demurrage/detention charge has been imposed in respect of goods in respect of which detention certificate has duly been issued by the Customs; (iv) Pass any other order(s) or direction (s) which this Hon'ble Court may deem fit and proper in favour of petitioner. FACTS RELEVANT FOR THE CONSIDERATION OF THE PRESENT CASE ARE AS FOLLOWS: 2. It is the case of the Petitioner that he had been working since 2005 with his father and helping him in the business of trading and brokerage of MS Scrap under the name M/s Shri Krishna Enterprises. 3. The Petitioner imported certain consumer goods like deodorants, body spray, Dove soaps, and perfumes etc. from M/s White City Trading LLC P.O. Box No. 120762, Dubai in a 40 ft. container bearing No. IALU 4563215. Bill of Entry No. 6209020 was filed on 09.03.2012 at Inland Container Depot, Tughlakabad, New Delhi ( ICD, TKD ) in the name of M/s Dynamic Marketing Inc. situated at H-6-221, Aggarwal Tower, Netaji Subhash Place, Pitampura, New Delhi. However, in the Bill of Entry, the Petitioner declared all the goods as mixed deodorants and the Petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al release of the seized goods and also showing his intent to move to the Settlement Commission. 9. Pursuant to the abovesaid Letters, Respondent No. 3 allowed the request of provisional release of seized goods with certain conditions vide Order No. 41/2012 dated 21.12.2012. The Petitioner was asked to submit 100% Bank Guarantee equivalent to duty amount and separate Indemnity Bond with Bank Guarantee of 10% of assessable value be furnished by the Petitioner. 10. The Petitioner did not get the goods provisionally released due to his insufficiency to fulfil the conditions of provisional release, however, he moved an application for inspection and drawl of sample of the seized goods. Pursuant to inspection and drawl of sample, the Petitioner found that all the cigarettes had expired and had no market value left. Therefore, Petitioner sent a Letter dated 01.02.2013 to Respondent No. 3 requesting for abandonment/ relinquishment of title of the cigarettes but the said request was not allowed. 11. Thereafter, the Petitioner moved to the Settlement Commission on 28.04.2014 after paying the admitted duty of Rs. 27,88,010/- (Rupees Twenty Seven Lakh Eighty Eight Thousand and Ten on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods of the Petitioner. SUBMISSIONS ADVANCED BY THE PETITIONER 16. The main contention of the learned counsel for the Petitioner is that the policy of CONCOR states that no request for waiver of demurrage charges or rent will be entertained where any fine, penalty or warning has been imposed by the custom authorities. However, in the case of the Petitioner, a nominal penalty was imposed and that too was imposed by the Settlement Commission and not by any custom authority. It is submitted by the learned counsel for the Petitioner that Settlement Commission cannot be considered as a custom authority as the former is an independent body/ forum constituted under Section 32 of the Central Excise Act, 1944. 17. It is further submitted that moving an application for settlement before Settlement Commission was not an admission of offence. It is submitted that any case decided by the Settlement Commission is not an adjudicating order but a settlement made between the parties. Therefore, the denial of request of waiver by CONCOR stating its policy was in gross violation of regulations provided in HCCAR, 2009. 18. Another contention of learned counsel for the Petitioner is th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds after waiving the demurrage/detention charges. SUBMISSIONS ADVANCED BY THE RESPONDENTS 22. The Terminal Manager of CONCOR, ICD, TKD had filed a Counter Affidavit on behalf of Respondent No. 2. 23. It is submitted by the learned counsel for CONCOR that CONCOR was made under the Ministry of Railway with a mission to profitably satisfy customer s needs for high-quality, cost-effective logistics services. CONCOR incurred huge expenditure in developing ICD and the infrastructure to provide container/ cargo handling and storage services to the importers and exporters. Further, CONCOR has to incur huge operating expenditure on the maintenance, safety and security of the cargo/ containers and infrastructure in these ICDs. However, the main source of income of CONCOR is from container/ cargo handling and storage services rendered to customers. Thus, any regulation depriving CONCOR from making revenue after providing its services is bad in law. 24. It is further averred that CONCOR, being a commercial organization formed from public exchequers cannot give rebate or waive the rent /charge from user in blanket manner. It has an elaborate procedure set forth for refund of fee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds cannot be accepted in view of the provisions of Section 23 of the Customs Act, 1962 read with proviso. Learned counsel for Respondent No. 3 has further stated that the imported goods in the present case were seized by DRI officers after out of charge was given, therefore, the seized goods could not have been abandoned by the Petitioner. 31. Further, the learned counsel for Respondent No. 3 has also placed reliance on the decision of Division Bench of this Court in the case of Trip Communication (supra). 32. With these submissions, learned counsel for Respondent No.2 3 prays for the dismissal of the present Writ Petition. LEGAL ANALYSIS 33. This Court has heard the arguments advanced by the learned counsel for the parties and has also examined the evidence placed on record and the judgments relied upon by the parties. 34. Learned counsel for the Petitioner argues that the denial of waiver of TSC as per its policy was in gross violation of Regulation 6(1)(l) of HCCAR, 2009 once detention certificate was issued by Respondent No. 3 stating that demurrage/ detention charges or rent should not be charged. He has stated that CONCOR has been recognized as a Cargo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... above, it is apparent that the Regulation 6(1)(l) of HCCAR, 2009 provides that no rent, demurrage on the goods seized or detained or confiscated shall be charged subject to any other law in force at the time being. Therefore, this regulation is subject to Section 63 of Customs Act which provides for the right of warehouse keeper to levy rent and warehouse charges and Section 63 was in force when CONCOR denied the waiver of TSC to the Petitioner. 40. Further, the learned counsel for Respondent Nos. 2 and 3 have stated that the present case is squarely covered by the decision of Division Bench of this Court in the case of Trip Communication (supra). The conclusion drawn by the Division Bench in the aforesaid judgment is extracted hereinbelow: 50. To sum up; (1) In cases where on conclusion of the adjudication proceedings there is no imposition of any fine, penalty, personal penalty and/or warning by the customs authorities: (i) the Policy for Waiver would be applicable; and (ii) the importer would be entitled to be considered for its benefit when the goods were seized, detained or earlier confiscated; and (iii) waiver would be granted subject to other co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5(2)(b) of the Act. That would be governed entirely by the contract between the importer and the carrier and the terms and conditions of the bill of lading, if any. ii. Where the carrier is a corporation incorporated by a statute like for instance, the CWC, or the CCI or SCI then it would be bound by the provisions of the Act as far as its right to recover demurrage or container charges is concerned. iii. Section 45(2)(b) of the Act, which enables the customs authorities to issue a detention certificate, cannot extend to directing the carrier or the owner of the container to waive the charges even where an order of confiscation or levy of penalty is ultimately held to be illegal by the courts. iv. The only option is for the Central Government to make a request to the owner of the container or the space where the goods were stored to waive demurrage charges and if it is so conceded then to that extent the importer would be able to get some relief. 45. The Hon ble Supreme Court of India has categorically laid down in its aforementioned judgments that the custom authorities are enabled to issue detention certificates, but it cannot direct the Cargo Service Provider ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stances customs authorities can be compelled and asked to pay demurrage to the warehousing companies/shipping companies, is a matter of considerable debate. Decision in the case of Sanjeev Woollen Mills (supra) states that in some cases customs authorities can be asked to pay demurrage to the warehousing company or shipping company. However, for this exceptional relief, grounds are required to be made out and established. 47. Reference to Section 127F of the Customs Act, 1962 may also be made at this point which is reproduced below for the sake of convenience: 127F. Power and procedure of Settlement Commission.- (1) In addition to the powers conferred on the Settlement Commission under Chapter V of the Central Excise Act, 1944 (1 of 1944), it shall have all the powers which are vested in an officer of the customs under this Act or the rules made thereunder. (2) Where an application made under section 127B has been allowed to be proceeded with under section 127C, the Settlement Commission shall, until an order is passed under sub-section (5) of section 127C, have, subject to the provisions of sub-section (4) of that section, exclusive jurisdiction to exercise t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt huge expenditure in developing of ICD infrastructure to provide container/ cargo handling and storage services to the importers and exporters. CONCOR also ensures safety and security of the cargo while it is lying at ICDs. Concor incurs huge expenditure while performing its functions and its main source of revenue is container/ cargo handling and storage services rendered to customers. 51. If the contention raised by the learned counsel for the Petitioner would be accepted then it will cause huge losses to CONCOR which has been formed from public exchequers. Therefore, in the public interest and in view of the observations and judgments cited hereinabove, the contention of the learned counsel for the Petitioner that if the penalty has been imposed by the Settlement Commission then the policy of CONCOR for not entertaining the request of waiver of demurrage/ detention charges would not be applicable, is not acceptable. 52. Further, in view of the observations made by the Division Bench of this Court in the matter titled as International Lease Finance Vs Union of India, W.P.(C) No. 6490/2018, decided on 27.03.2019, this Court is not inclined to allow the prayer (i) made ..... 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