TMI Blog2024 (3) TMI 1301X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Court has rightly held that the 2009 Regulations are ultra vires the Customs Act, 1962. In support of the aforesaid submissions, reliance has been placed on the decisions of the Supreme Court in Government of Maharashtra vs. Deokar s Distillery [ 2003 (3) TMI 727 - SUPREME COURT] and Gupta Modern Breweries vs. State of Jammu and Kashmir [ 2007 (4) TMI 684 - SUPREME COURT] . From a perusal of Section 157 of the Customs Act, it is evident that Section 157 does not enumerate any specific provision under which cost recovery charges i.e., the amount of salary payable to the officials of the Customs Department, who are deployed at the Airport who perform their statutory duties, can be recovered. The 2009 Regulations have been framed in exercise of the powers conferred under Section 141 and Section 157 of the Customs Act. From a close scrutiny of the aforesaid provisions of Sections 141 and 157, it is evident that there is no express statutory provision conferring authority on the appellants to levy cost recovery charges. In the absence of any special authorization to levy cost recovery charges, appellants have no authority to impose cost recovery charges by means of a Regulation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charges between the years 2008 and 2013. In order to appreciate the challenge of the appellants to the impugned order, the relevant facts need mention which are stated infra. 2. In the year 1999, the Government of India (GoI), Airports Authority of India (AAI) and the erstwhile Government of Andhra Pradesh (GoAP) agreed to set up a new Greenfield International Airport at Hyderabad on Public Private Participation basis. On 26.06.2002, guidelines were issued vide Circular No.34/2002 by Central Board of Excise and Customs for appointment of Custodian of Sea Ports and Air Cargo Complexes. A tender was issued in which respondent No.1 (hereinafter referred as the Company ) was declared as a preferred bidder and a Concession Agreement on 20.12.2004 was executed between the Ministry of Civil Aviation, GoI and the Hyderabad International Airport Limited for development, construction, operation and maintenance of Greenfield Airport at Shamshabad near Hyderabad. 3. Under the aforesaid Concession Agreement, the Company had to operate, maintain and perform airport activities and non-airport activities. Article 3.2.1(b) of the Concession Agreement recognises the right of the Company to carry on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 09 was issued, by which the Company was asked to pay cost of providing the custom clearance certificate of customs department. By an order dated 16.06.2009 the Assistant Commissioner Customs raised a demand of Rs.2,72,54,865/- for the period from 23.03.2008 to 31.03.2009 towards establishment charges of the Customs Staff posted at Air Cargo Complex. On 25.06.2009, the Company paid a sum of Rs.1.50 crores under protest. Again on 07.08.2009, a further sum of Rs.1.00 crore was paid under protest. The Company filed the writ petition, in which the validity of the Notification No.26/2009, dated 17.03.2009 and Notification No.96/2010, dated 22.11.2010 issued by the Central Board of Excise and Customs in respect of cost recovery was challenged. 8. The learned Single Judge of this Court by an order dated 11.06.2012 allowed the writ petition and inter alia held that Regulation 5(2) of the 2009 Regulations has no legal substratum to survive and held that consequential levy made on respondent No.1 towards cost recovery charges is wholly unsustainable. In the aforesaid factual background, this intra court appeal has been filed. 9. Learned Additional Solicitor General of India submitted that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt has rightly held that the 2009 Regulations are ultra vires the Customs Act, 1962. In support of the aforesaid submissions, reliance has been placed on the decisions of the Supreme Court in Government of Maharashtra vs. Deokar s Distillery (2003) 5 SCC 669 and Gupta Modern Breweries vs. State of Jammu and Kashmir (2007) 6 SCC 317 . 12. We have considered the submissions made on rival sides and have perused the record. The singular issue which arises for consideration in this intra Court Appeal is whether the impugned 2009 Regulations are ultra vires the Customs Act, 1962. 13. The principles of interpretation with regard to taxing statutes are well-settled. A Constitution Bench of the Supreme Court in CST vs. Modi Sugar Mills Limited 1960 SCC OnLine SC 118 held that the construction has to be made on express language used in the statute and there is no room for equitable consideration and presumption cannot apply. 14. A three-Judge Bench of the Supreme Court in Bimal Chandra Banerjee vs. State of Madhya Pradesh (1970) 2 SCC 467 held that the State Government cannot impose tax when there is no special authorization to do the same by the taxing statute. In paragraphs 13 and 14, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of such tax or fee. It appears to us that the delegated authority must act strictly within the parameters of the authority delegated to it under the Act and it will not be proper to bring the theory of implied intent or the concept of incidental and ancillary power in the matter of exercise of fiscal power. The facts and circumstances in the case of District Council of Jowai are entirely different. The exercise of powers by the Autonomous Jaintia Hills Districts are controlled by the constitutional provisions and in the special facts of the case, this Court has indicated that the realisation of just fee for a specific purpose by the autonomous District was justified and such power was implied. The said decision cannot be made applicable in the facts of this case or the same should not be held to have laid down any legal proposition that in matters of imposition of tax or fees, the question of necessary intendment may be looked into when there is no express provision for imposition of fee or tax. The other decision in Khargram Panchayat Samiti case [(1987) 3 SCC 82] also deals with the exercise of incidental and consequential power in the field of administrative law and the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nces and goods in a customs area subject to control of officers of customs . Section 141 is extracted below for the facility of the reference. 141. Conveyances and goods in a customs area subject to control of officers of customs:- (1) 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. (2) The imported or export goods may be received, stored, delivered, despatched 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. 18. It is evident that all the conveyances and goods in a customs area shall, for the purposes of enforcing the provisions of the Customs Act shall be subject to control of the officers of customs. Section 141 (2) of the Customs Act provides that the imported or export goods may be received, stored, delivered, despatched 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. 19. Section 157 of the Customs Act de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or export goods; (i) the documents to be furnished in relation to imported goods; (j) the conditions, restrictions and the manner of making deposits in electronic cash ledger, the utilisation and refund therefrom and the manner of maintaining such ledger; (ja) the manner of maintaining electronic duty credit ledger, making payment from such ledger, transfer of duty credit from ledger of one person to the ledger of another and the conditions, restrictions and time limit relating thereto; (k) the manner of conducting audit; (ka) the manner of authentication and the time limit for such authentication, the document or information to be furnished and the manner of submitting such document or information and the time limit for such submission, the form and the manner of furnishing alternative means of identification and the time limit for furnishing such identification, person or class of persons to be exempted and conditions subject to which suspension may be made, under Chapter XIIB; (l) the goods for controlled delivery and the manner thereof; (m) the measures and separate procedure or documentation for a class of importers or exporters or categories of goods or on the basis of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticle 265 of the Constitution of India. Even assuming that the said levy to be a fee, the same cannot be recovered from the respondent as no services are provided to it by deployment of additional staff at the Airport between the years 2008 and 2013. 23. We may take note of decision of Bombay High Court in Mumbai International Airport Private Limited (supra). In the aforesaid decision, the validity of Regulation 5(2) of the 2009 Regulations was challenged on the ground that the same is ultra vires Sections 157 and 158 of the Customs Act as well as violative of Articles 14 and 19(1)(g) of the Constitution of India. The aforesaid ground of challenge was dealt by the Division Bench in paragraph 53, which reads as under: 53. Mr. Jetly was, therefore, justified in urging that the Petitioners communication firstly requesting for grant of a status as a custodian and thereafter seeking approval would bely their contentions and to the contrary. If some governmental functions have been now allowed to be performed and carried out by the private entities that will not make any difference. In that regard, Mr. Jetly's reliance on para-10 of the affidavit in reply and the annexures thereto, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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