TMI Blog2001 (4) TMI 100X X X X Extracts X X X X X X X X Extracts X X X X ..... 004. As per the licence issued, the licensee is authorized to transact business as Customs House Agent at ICD Reddipalem, Guntur. 4.The Container Corporation of India Limited, Guntur, (CONCOR, for brevity), the 2nd respondent herein after developing the area and upgrading the facilities by providing infrastructure at ICD, Reddipalem, Guntur and furnishing the undertakings and requisite Bond, as required in Board's Circular No. 128/95, dated 14-12-1995 requested the Commissioner for re-notification of the "Customs Area" and appointment of CONCOR as the Custodian. After inspection of the new facilities and scrutiny of the undertakings, the Commissioner issued Notification No. 1/2001, dated 17-1-2001 appointing CONCOR as the Custodian and Public Notice No. 9/2001, dated 3-2-2001 prescribing the procedure to be followed at ICD, Reddipalem, Guntur for Imports/Exports. The impugned notification inter alia provides : "……..For factory stuffing CONCOR shall arrange for movement of empty containers to the Factories for stuffing and after completion of stuffing and customs sealing it is the responsibility of CONCOR as a Custodian to transport by Rail/Road to the Gateway Ports directly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cleared the concerned goods for import or export. The CHAs are also answerable to their principals, namely the importers or exporters, if for any reason the goods are delayed or have been detained anywhere during transportation. The CHAs therefore have to necessarily take charge of the transportation of the goods also. In fact, the Customs House Agents Licensing4. Rules, 1984, at Rule 10(2)(b) clearly lays down that to qualify for the grant of a regular CHA licence, the applicant must show that it possesses transportation facilities. Only then a regular licence is issued. Thus even the statute recognizes that the CHAs are the persons who are normally entrusted with the transport of the goods cleared by them. Since the transportation of such goods can either be through road, rail, inland waterways or sea, depending upon each case. The CHAs must possess the means for such transportation. The petitioner herein has in fact obtained a Multi-model transport operation licence issued by the Ministry of Surface Transport and is licensed to carry cargo on a warehouse to warehouse basis using more than one mode of transport. Thus transportation of goods is a major activity of any CHA and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... c notice the source of power of the Commissioner is not disclosed, it is issued in the purported exercise of power conferred upon him under Section 45 of the Act and if that is so, Section 45 of the Act does not permit him to issue the impugned public notice governing export of goods. Further, Sections 50 and 51 of the Act which deal with clearance of export goods do not authorize the Commissioner to issue the public notice of the nature impugned in this writ petition. 7.On the other hand, Shri L. Narasimha Reddy, learned Senior Standing Counsel for Government of India, would at the threshold contend that the petitioner cannot be said to be an aggrieved person by issuance of the impugned public notice inasmuch as none of its legal rights are infringed or affected and, therefore, the writ petition filed by it is not maintainable. The obligations imposed on the petitioner-company in its status as CHA under Regulation 14 of the Customs House Agents Licensing Regulations, 1984 (the Regulations, for brevity) do not include the obligation of the petitioner to transport the goods. The learned Senior Standing Counsel would point out that in exercise of the power conferred under Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suspended or revoked; and (f) the appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeals shall be filed." Sub-section (2) of Section 146 empowers the Board to make Regulations for the purpose of carrying out the provisions of Section 146, and in particular, on the subjects enumerated in Clauses (a) to (f). Accordingly, in exercise of that power, the Board has framed the Regulations. Regulation 2(c) defines "Customs House Agent". It reads : "(c) "Customs House Agent" means a person licensed under these regulations to act as agent for the transaction of any business relating to the entry or departure of conveyances or the import or export of goods at any customs station." Section 2(9) of the Act defines "conveyance" as follows : "2(9). 'conveyance' includes a vessel, an aircraft and a vehicle". Section 2(11) defines "customs area" which reads : "2(11) "customs area" means the area of customs station and includes any area in which imported goods or export goods are ordinarily kept before clearance by Customs Authorities." Section 2(12) defines "customs port" as follows : "2(12) "customs port" mean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aised by the learned Counsel for the petitioner in paragraphs 3 and 4 of the affidavit that the functions of a CHA are two fold, the first part being 'paper work' after clearing the goods and the second part being 'transport of goods', is neither justified nor legally tenable. The inference sought to be drawn by the petitioner in that regard is not in accordance with either the Act or the Regulations made thereunder. Regulation 14 lays down certain obligations of the CHA in Clauses (a) to (p). Regulation 14 reads : Obligations of Custom House Agent. -"14. A Custom House Agent shall : (a) obtain an authorization from each of the companies, firms or individuals by whom he is for the time being employed as Custom House Agent and produce such authorization whenever required by an Assistant Commissioner of Customs or Deputy Commissioner of Customs; (b) transact business in the Customs Station either personally or through an employee duly approved by the Assistant Commissioner of Customs or Deputy Commissioner of Customs designated by the Commissioner; (c) not represent a client before an officer of Customs in any matter to which he, as officer of the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... vered in the Customs Station by him show the name of the importer or exporter, as the case may be, and the name of the Custom House Agent, prominently at the top of such documents; (n) in the event of the licence granted to him being lost, immediately report the fact to the Commissioner; (o) ensure that he discharges his duties as Custom House Agent with utmost speed and efficiency and without avoidable delay; and (p) not charge for his services as Custom House Agent in excess of the rates approved by the Commissioner from time to time under Regulation 25." None of the obligations enumerated in Regulation 14 envisages the role of a CHA as a transporter. 11.However, Mr. S. Ravi, learned Counsel for the petitioner, placing reliance on Regulation 10(2)(b) would contend that possession of a transport facility is also one of the essential qualification for an applicant for CHA licence. The contention of the learned Counsel is not well founded and not tenable. Regulation 10(2)(b) reads - "10.Grant of regular licence. - (1) x x x The Custom House Agents who are granted regular(2) licences under Regulation 10, shall be eligible to work in all Customs Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on, the clearing agent ceases to be an agent of the importer. The clearing agent cannot be treated as an agent of an importer for all time to come solely on the ground that the importer is the owner of the goods and the goods are found lying in his custody. The importer may sell the goods immediately after it has been imported. The person from whose custody the goods may be seized subsequent to the clearance may be a person other than the importer or the owner. The clearing agent ceases to be an agent of the importer after clearance of the goods from the customs station. The clearing agent has no further function to discharge after removal of the goods from the customs station. He cannot be treated as an agent for all time to come even after the goods have been cleared." 12.As could be seen from the foregoing provisions of the Statute and the judicial pronouncement, the role of a CHA is limited to the obligations as laid down in Regulation 14. The requirement of ability to provide adequate warehousing and transport facilities at the place of clearance of goods as required under Regulation 10(2)(b) is only for the purpose of assisting the exporter or importer for whom the CHA acts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd building, etc., shall be made without the concurrence of the Commissioner of Customs; 4. Insurance of all goods held in the ICD/CFS shall be made by the custodian; 5. Custodian shall abide by all the rules and regulations under the Customs Act; 6. For proper discharge of duties the custodian shall execute a bond equal to the value of the goods likely to be stored in the premises for a period of 30 days, supported by a bank guarantee or a Government bond or cash deposit equivalent to 10% of the value of goods; 7. The custodian shall bear the duty on the goods lost or pilfered from the CFS/ICD; 8. The custodian shall give separate bond with sufficient bank guarantee of the value of the bond towards the duty element of the Export goods transported from the customs area to the gateway port/any other customs area for export/transhipment. Custodian would also be held responsible for the delay and for other penalties leviable for the goods lost during transhipment from the said customs area to the gateway port/other customs area; 9. Security of the premises shall be the responsibility of the custodian subject to the prior appr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovides that full container"2. load (FCL) cargo can be transferred under Customs/Central Excise seal from ICD/CFS or from the factories, in case of container stuffed inside the factory, to the Gateway Port. Similarly, it is proposed that the goods from the factory of manufacture or from the ICD/CFS can also be transferred in a truck, sealed by the Customs/Central Excise Officer to the Airport for further shipment by air or for further consolidation of such goods in the port into a container. This would also enable carriage of smaller packages belonging to more than one exporter in one truck which would be sealed after stuffing in the ICD/CFS. xxxxxx The Custodians would be required to move the6. goods by road or rail up to Gateway Ports/Airports." Thus, the above said Circular specifically provides that it is the responsibility of the Custodian to transport the Containers from the ICD to Gateway ports. It is stated in the counter affidavit filed by the 1st respondent that as tobacco is sensitive to multiple handlings, the Commissioner, keeping the interests of the exporters in view has specifically provided for stuffing at factory also under the supervision of the Customs aut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y authority of law. The Commissioner, in issuing the impugned public notice, is well within his powers to prescribe the procedure to ensure the compliance of the provisions of the Act, the Rules and the Regulations framed thereunder. 16.This takes us to the contention that since the impugned public notice creates monopoly in CONCOR as regards transport of export goods, the petitioner's right under Article 19(1)(g) of the Constitution to carry on trade and business is violated. Here again, we do not find any merit in the contention. As already pointed out that none of the rights of the petitioner-company have been violated and, therefore, the contention is untenable. The right guaranteed by Clause (1)(g) of Article 19 of the Constitution is the natural right to enter into or carry on any trade, profession or calling which every person, has as the member of a civilized society. It is well established by the decisions in Anand v. State of Orissa; 1995 (2) SCR 919; Shivji v. Union of India - AIR 1959 Punj. 510; Mahadeo v. State of Bombay - AIR 1959 SC 735; Mediator Co. v. State of West Bengal - AIR 1958 Cal. 634 and Ram Jawaya v. State of Punjab - 1955 (2) SCR 225, that there cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In view of the upgradation of the ICD facilities at Reddipalem, Guntur to facilitate Trade and Industry, Liners, CHAs for easy handling of Imports and Exports, and also taking into consideration the increasing demand for containerization at Guntur, CONCOR requested Customs to permit for setting up a full fledged ICD at Reddipalem, Guntur by providing all modern infrastructure and equipment facilities. (3) Keeping in view the growing demand and readiness of CONCOR to set up a full fledged ICD at Reddipalem, Guntur, the Commissioner of Customs and Central Excise, Guntur has re-notified the entire area as ICD vide Notification No. 1/2001-Cus., dated 17-1-2001 to handle both Import and Export Cargo and movement of Containers both by Rail and Road between ICD, Reddipalem, Guntur to the Gateway Ports and vice versa." 18.In the counter-affidavit filed by the 1st respondent, it is stated that the impugned action is taken as a measure of protecting the revenue of the Government of India and in the public interest. As the Courts repeatedly held that they will not normally interfere with the policy decision of the Government and Governmental authorities, court must exercise juri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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