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2011 Supreme(Bom) 1201
2011 (6) ALLMR 675
High Court of Judicature at Bombay
D.Y. CHANDRACHUD & A. A. SAYED
M/s. CFS Association of India
Versus
Union of India & Others
WRIT PETITION NO.3651 OF 2011
Decided on : 05-10-2011
For the Petitioner:Vikram Nankani with Nitya Bagaria, Sushanth Murthy i/b. Naresh S. Thacker, Advocates.
For the Respondents:Pradeep S. Jetly, Advocate.
Headnote:Customs Act, 1962 - Sections 8, 45 and 141-Handling of Cargo in Customs Areas Regulations, 2009, Regulations 6, 7 and 10-Power of Commissioner, Customs-Safety and security of customs area, a matter of paramount concern-Power to relax conferred upon Commissioner by Regulation 7, to be exercised with a view to subserving basic object and purpose of Regulations.-The statutory framework under which Container Freight Stations or, as the case may be, Inland Container Depots of the Port function originates in the provisions of the Customs Act, 1962. Under Section 45, all imported goods which are unloaded in a customs area, remain in the custody of such persons as may be approved by the Commissioner of Customs. Under Section 8, the Commissioner of Customs is empowered to approve of proper places in a Port area for unloading and loading of goods and to specify the limits of any customs area. Under Section 141(2), imported or export goods have to be received, started or export goods have to be received, stored, delivered, dispatched and handled in a customs area in such manner as may be prescribed. The Regulations have been made in exercise of the statutory power conferred by Section 141(2) read with Section 157. The Regulations spell out the conditions which are required to be fulfilled by an applicant who seeks permission for retaining custody and in handling imported or exported or export goods in a customs area. Regulation 5 prescribed condition in regard to maintenance of infrastructure and other facilities and empowers the Commissioner of Customs to specify the facilities which are required to be maintained. The safely and security of the customs area is a matter of paramount concern. Even though a power to relax has been conferred upon the Commissioner by Regulation 7, that power has been conferred upon the Commissioner by Regulation 7, that power has to be exercised with a view to sub-serving the basic object and purpose of the regulations.
Constitution of India - Article 226-Customs Act, 1962, Sections 8, 45 and 141-Handling of Cargo in Customs Area Regulation, 2009, Regulations 6, 7 and 10-Writ jurisdiction - Exercise of-Hazardous Cargo- Matters of scientific expertise-Commissioner of Customs is an authority, vested with jurisdiction and obligation to take a decision under Regulations of 2009-In absence of any thing arbitrary, exercise of writ jurisdiction under Article 226 of Constitution unwarranted.-In the exercise of its jurisdiction under Article 226 of the Constitution, this Court has to be mindful of the fact that issues such as the maintenance of a safe distance between general and hazardous cargo are matters of scientific expertise where the Court would place a degree of deference on the decision which is taken by the Commissioner of Customs. The Commissioner of Customs is an authority which is vested with the jurisdiction and obligation to take such a decision under the Regulations of 2009. Unless there is something arbitrary, the Court would not be inclined to interfere.
DR. D.Y. CHANDRACHUD, J.
1. The Petition is filed by an association representing eleven Container Freight Stations, who claim to handle nearly eighty per cent of the local container cargo at NhavaSheva. The Petitioner challenges (i) Circular 4/2011; (ii) Public Notice 8/2011; (iii) A check list issued under a letter dated 3 March 2011, as modified by a letter dated 6 April 2011. The Petitioner contends that these are unconstitutional and ultra vires Articles 14 and 19(1) (g) of the Constitution, the Environment (Protection) Act, 1986 and the Dangerous Goods (Arrival, Receipt, Transport, Handling and Storage) in Jawaharlal Nehru Port Regulations, 2007. The bone of contention in the present case relates to the prescription of a distance to be maintained between general cargo and hazardous cargo at Container Freight Stations or, as the case may be, Inland Container Depots.
2. Section 45 of the Customs Act, 1962 provides that all imported goods unloaded in a Customs area, shall remain in the custody of such person as may be approved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or transhipped in accordance with the provisions of Chapter VIII. Section 141(2) provides that imported or export goods may be received, stored, delivered, despatched or otherwise handled in a Customs area in such manner as may be prescribed. The responsibilities of persons engaged in the aforesaid activities shall be such as may be prescribed. In exercise of the power conferred by Subsection (2) of Section 141 and of the general power to make regulations under Section 157 to carry out the purposes of the Act, the Central Board of Excise and Customs framed certain Regulations. These Regulations are called the Handling of Cargo in Customs Areas Regulations, 2009. Regulation 5 prescribes the conditions to be fulfilled by an applicant for custody and handling of imported or export goods in a Customs area. Regulation 5 (5) requires an applicant to comply with the provisions of the Customs Act, 1962 and the rules, regulations, notifications and orders issued thereunder. Under Regulation 5, any person who intends to be approved as a Customs Cargo Service Provider (CCSP) for custody of imported goods or export goods and for handling such goods, in a Customs area, has to fulfill stipulated conditions. The conditions relate to maintenance of infrastructural and other facilities, to the satisfaction of the Commissioner of Customs. Under clause (n) of Regulation 5(1), the applicant has to maintain such other facilities as the Commissioner of Customs may specify, having regard to the custody and handling of imported and export goods in a Customs area. The applicant has to provide for safe, secure and spacious premises for loading, unloading, handling and storage of cargo for the projected capacity and for examination and other operations as may be required in compliance with any law for the time being in force. Regulation 6(q) requires the CCSP to abide by all the provisions of the Act and of the rules, regulations, notifications and orders issued thereunder.
3. The Government of India set up an Inter Ministerial Standing Committee consisting of officials of the Union Ministries of Commerce, Finance (Department of Revenue), Railways and Shipping to act as a single window mechanism to consider proposals for setting up Inland Container Depots (ICD) and Container Freight Stations (CFS). Once a proposal is accepted, a Letter of Intent is issued to an applicant by the Infrastructure Division in the Department of Commerce of the Ministry of Commerce and Industry of the Union Government. Every applicant furnishes an undertaking for compliance with the Handling of Cargo in Customs Areas Regulations, 2009. Container Freight Stations or, as the case may be, Inland Container Depots are notified and regulated by the Customs Act, 1962. Their boundaries are notified under Section 8. Every CCSP is under a mandatory duty to co
