9911796707
TMI Blog2024 (6) TMI 4X X X X Extracts X X X X X X X X Extracts X X X X ..... 3-24/Commr/NS-Gen/CAC/CCCSP/JNCH dated 10th August 2023] , [order-in-original no. 118/2023-24/Commr/NS-Gen/CAC/CCCSP/JNCH dated 10th August 2023] order of Commissioner of Customs (General), Nhava Sheva, that, in addition to imposition of identical penalties of Rs. 50,000 and Rs. 4,00,000 under regulation 12(8) of Handling of Cargo in Customs Areas Regulations, 2009 and section 117 of Customs Act, 1962, has directed that the cargo handling undertakings, permitted vide '.....Public Notice No. 102/2020 dated 17.08.2020 for operator as CCSP will stand suspended till regularization of permission for handling and storage of hazardous cargo...' for the CFS (Annex) and '..... Public Notice No. 110/2020 dated 07.09.2020 for operator as CCSP will stand suspended till regularization of permission for handling and storage of hazardous cargo...' for the CFS (Annex) respectively, in the event of failure to 'fulfil responsibilities as mandated under regulation 6 of HCCAR-2009 and regularize the permission...for handling and storage of hazardous cargo within one month....' The cavil here is that the prescribing of such condition for purported 'regularization', contingent upon which the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the portrayal of the issue and laying out of statistical information in show cause notice; and, ironically enough, frequent reference to 'threshold' only confuses the context more than it clarifies. The consequential breach of '(i) be responsible for the safety and security of the imported and exported goods under its custody;' and '(q) abide by all the provisions of the Act and the rules, regulations, notifications and orders issued thereunder.' in regulation 6(1) of Handling of Cargo in Customs Areas Regulations, 2009, vesting obligations on 'customs cargo service provider (CCSP)', during the validity of approval to continue as such, which, though not requiring such refined conformity as set out in the litany of allegations, has been drawn upon, if only for its generality, to penalize non-adherence to 'The Custodian M/s APM Terminals India Pvt. Ltd. -..., is approved as Customs Cargo Services Provider for the said CFS and shall abide by all the provisions of The Customs Act, 1962 and the rules of the Handling of Cargo in Customs Areas Regulations, 2009 ("HCCAR, 2009"), other regulations, notifications, orders issued there under.' incorporated in the public notice that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellant, as operator of CFS (Annex), had been permitted, by letter of 5th February 2015, to handle, store, receive or despatch 'hazardous cargo' for import or export which had been renewed on 29th August 2019 for two years with validity till 17th May 2021 following which request dated 30th April 2019 for further renewal had been kept pending purportedly for alleged non-compliance. Likewise, the appellant had, as operator of CFS (Main), been permitted, by letter of 7th May 2015, to handle, store, receive or despatch 'hazardous cargo' for import or export which was renewed on 18th May 2017 for two years with validity till 17th May 2019 following which request dated 18th April 2019 for further renewal had been kept pending purportedly for alleged irregularity. The stage was, thus, set for issuing notice of intention to suspend the operation as 'customs cargo service provider (CCSP)', during the period of validity, by recourse to empowerment in the regulatory framework for non-compliance with purported stipulations attending on the separate approval for handling of 'hazardous goods' that, in contrast, was renewable every two years. It is the context of that 'approval within approval' ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for altering the contours of handling of cargo and enlarging the statutory framework of custodianship beyond that of port administration and, adapting to evolution of logistic specialization, the amendment in Customs Act, 1962 by Finance Act, 2008 envisaged assurance of national uniformity to every handler of cargo through Handling of Cargo in Customs Areas Regulations, 2009. Neither the specifics of facts impugned in the proceedings as determinant of breach of obligations supra nor the responsibility for adherence to prescriptions under any other statutory instrument is discernible in Handling of Cargo in Customs Areas Regulations, 2009 even by reference. Nonetheless, 'The authorization is subject to strict compliance of conditions as laid down in HCCAR-2009 as amended, Public Notice 08/20211 dated 04.02.2011, CBEC Circular No. 40/2016 dated 26.08.2016, and various Rules, Acts mentioned therein and any other amendments done to them from time to time.' and 'The authorization is subject to strict compliance of conditions as laid down in HCCAR-2009 as amended, Public Notice 08/20211 dated 04.02.2011, CBEC Circular No. 40/2016 dated 26.08.2016, and various Rules, Acts mentioned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was also granted authorization for handling, storing, receipt or dispatch of Hazardous DPD containers at the CFS, vide this office letter dated 14.09.2018 for the period valid for the two years from date of issue. I, therefore, proceed on the basis of all available documents in the record. The issues before me are, i. Whether the CCSP has erred in performing their responsibilities entrusted with them by the Regulations 6 (1) (i) and 6 (1) (q) under HCCAR, 2009? ii. If yes, what should be the quantum of punishment? 20. With regard to the first issue above, I find that, the responsibilities of the CCSP have been clearly enumerated in the Regulations 6 (1) (i) & 6 (l)(q) of the HCCAR, 2009. Circular No.04/2011-Cus dated 10.01.2021 stipulates the guidelines for safety and security of premises storing and handling hazardous goods and the same was communicated vide JNCH Public Notice No. 129/2020 dated 07.10.2020; which have to be necessarily complied with by every CFSs storing and handling hazardous chemicals and said CFS comes under the ambit of same. CCSP has exceeded the threshold limit of storage of hazardous cargo against the chemicals stated in Sr. No 26 of MSIHCR, 1989 for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be subjected to exemption by any authority. Para 5 of Circular No. 04/2011-Cus dated 10.01.2021, also reiterates that "it has been decided that no relaxation or exemption from requirements on safety and security of premises shall be allowed by Commissioners of Customs to the Custodians or Cargo Service Providers in terms of provisions of Regulation 7 of the Handling of Cargo in Customs Areas Regulations, 2009. Also, keeping in view the paramount importance of overall safety and security of imported / export goods, detailed guidelines are being prescribed in order to ensure that all concerned persons ensure that suitable arrangements are put in place for safety and security of premises relating to imported or export goods. These guidelines are annexed as per annexure A to this Circular. Commissioners of Customs are required to ensure that provisions pertaining to safety and security of premises are complied with strictly at the time of appointment of CCSP and monitored thereafter...". If CFS wish to handle hazardous Cargo, exceeding threshold quantity under Schedule 2 of MSIHC Rules, 1989, they should get a permission from MPCB. However, they have not submitted MPCB consent for exce ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d of Excise & Customs (CBEC) pertaining to handling of 'hazardous chemicals' that was contained in circular no. 4/2011-Cus dated 10th January 2011 and, in particular, enjoining regular safety audits in accordance with rule 10 of Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989. There is nothing original in the minutiae as, for no particular or palpable reason, the old circular has been reiterated. The circular itself consolidates several aspects of control over 'customs cargo service provider (CCSP)' that, owing to amendments in Handling of Cargo in Customs Area Regulations, 2009, happened to come under scrutiny of the Parliamentary Committee on Subordinate Legislation which was concerned that the safety mandates therein could, in the discretion of Commissioner of Customs, be diluted in the same manner as others therein. It was to communicate, inter alia, the direction that dilution of the safety mandates was not within such discretion of Commissioner of Customs that the circular of Central Board of Excise & Customs (CBEC) came to be issued. There is, again, nothing original in the contents of Annexure A to the circular which summarized the requirements of several ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner of Customs to ensure closure of 'hazardous chemicals' storage facility. The question that arises is the existence of such determination. 11. It is in the light of this exposition, made necessary by the lack of clarity in the show cause notice and impugned order, that the primary challenge of the appellant must be evaluated before proceeding to examine compliance with the mandate of Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989. For if the Commissioner of Customs is without jurisdiction to initiate action for breach of the Rules by reason of explicit lack of acknowledgement therein and/or by lack of domain competence to ascertain compliance, we, too, lack such jurisdiction. Accordingly, we have heard Learned Senior Counsel for the appellants and Learned Authorized Representative at length. 12. The first step in determination of authority lies within the scope of breach, envisaged in Handling of Cargo in Customs Area Regulations, 2009 designed for oversight of 'customs cargo service provider (CCSP)' including 'custodians such as the appellant and prescribes obligations in regulation 6 therein, that may be visited with impugned detriment under the authority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Cargo in Customs Area Regulations, 2009. That this restriction was fully acknowledged is apparent from disinclination on the part of Central Board of Excise & Customs (CBEC) to extend the Regulations and, instead, preferring to communicate the importance of compliance with Rules framed under Environment Protection Act, 1986 through the impugned circular. That presumable lack of authority in either Central Board of Excise & Customs (CBEC) or the Government of India in the Department of Revenue to absorb, and to delegate, authority under the fief of the Government of India in the Ministry of Environment could not have been overcome by the Commissioner of Customs. Most significantly, the authorities enumerated in schedule V of Manufacture, Storage and Import of Hazardous Chemicals Rules, 1989 (MSIHCR, 1989) do not include customs agencies for any purpose therein and it may well be anathema to Rules of Business for such authority to be arrogated. 14. It has been argued by Learned Authorized Representative that the circular and public notice have force of law owing to reach of section 151A of Customs Act, 1962 but we are constrained to note that neither of those - impugned in these pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in excess thereof which, in the context of the impugned proceedings, is relevant to approval by the competent authority under rule 7 therein as well as stipulation of consent on alteration from the terms for approvals obtained initially. That the appellant was indeed required to obtain approval is not in dispute and there is no allegation that these had not been obtained initially. The crossing of 'threshold' is the sole trigger and schedule 2 of the Rules does not prescribe 'threshold' beyond 'threshold'; once within coverage of obligation under rule 7 therein, the engagement is for all time. Significantly, reverting to the competent authority is warranted only when another chemical, with its own enumerated threshold, is proposed to be stored or the stipulated threshold is altered by law. The Commissioner of Customs has erred in assigning another context to 'threshold', and, indeed, one not conceived for the impugned Rules, which we suspect is that of loss of consent when storage at, any point in time, slips below the threshold; that does not appeal to common sense and nor does it appear, from literal reading of the provisions, to be intended so either. A perusal of the document ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
