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IN THE HIGH COURT OF DELHI AT NEW DELHI
Gaurang Kanth, J.
Bhavik S. Thakkar – Appellant
Versus
Union of India & Ors. – Respondents
W.P.(C) 982 of 2015 and C.M. No. 1736 of 2015
Decided On : 14-02-2023
Waiver of TSC - Customs Regulations - Customs Act, 1962, Section 63; Handling of Cargo in Customs Area Regulations, 2009, Regulation 6(1)(l) - The court discussed the applicability of Regulation 6(1)(l) of HCCAR, 2009 and Section 63 of the Customs Act, 1962 in relation to the waiver of Terminal Service Charges (TSC) by the Customs Cargo Service Provider. The court analyzed the legal provisions and held that the denial of waiver of TSC by the Cargo Service Provider was not in violation of any legislation. The court also considered the imposition of penalty by the Settlement Commission and concluded that the penalty imposed by the Settlement Commission would be treated as a penalty imposed by a custom authority. The court dismissed the Writ Petition and held that the Cargo Service Provider was not obligated to waive the TSC.
Fact of the Case:
The Petitioner imported goods and declared them as 'mixed deodorants' to evade custom duty. The Directorate of Revenue Intelligence intercepted the goods and seized the container after finding undeclared goods. The Petitioner sought provisional release of the goods, but faced delays and harsh conditions. The Settlement Commission imposed a penalty and fine, and the Cargo Service Provider denied waiver of Terminal Service Charges (TSC). The Petitioner filed a Writ Petition seeking release of goods and waiver of TSC.
Finding of the Court:
The court found that the Cargo Service Provider was not obligated to waive the TSC, as the denial of waiver was not in violation of any legislation. The court also held that the penalty imposed by the Settlement Commission would be treated as a penalty imposed by a custom authority. The court dismissed the Writ Petition and the pending application.
Issues: The issues involved the applicability of regulations on waiver of TSC, the imposition of penalty by the Settlement Commission, and the obligation of the Cargo Service Provider to waive the TSC.
Ratio Decidendi: The court held that the Cargo Service Provider was not obligated to waive the TSC, as the denial of waiver was not in violation of any legislation. The court also concluded that the penalty imposed by the Settlement Commission would be treated as a penalty imposed by a custom authority.
Final Decision: The court dismissed the Writ Petition and the pending application, and no costs were awarded.
JUDGMENT
Gaurang Kanth, J. The present Writ Petition has been preferred by the Petitioner under Article 226 of Constitution of India seeking the following prayers:
"(i) Direct the respondent no. 2 to release the goods immediately without charging demurrage/detention charges or rent;
(ii) Direct the respondent nos. 1 to 3 to pay appropriate compensation for their negligence and apathy leading to perishing/deterioration of goods;
(iii) Direct the respondent no. 4 to initiate appropriate action against respondent no. 2 for suspension/revocation of approval as Customs Cargo Service Provider for the violation of provisions 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 paid the assessed Custom duty of Rs.4,25,429/- (Rupees Four Lakh Twenty-Five Thousand Four Hundred and Twenty-Nine Only) vide TR-6 Challan No. 2003178238 dated 12.03.2012 on these mis-declared goods.
4. The officers of Directorate of Revenue Intelligence (hereinafter referred to as `DRI') received intelligence information about the said mis-declaration and consequently, reached ICD, TKD in order to intercept the said container. They located the said container loaded on a truck bearing No. HR 38F 4835 and the truck was in the exit lane, ready to exit from ICD, TKD as the said container had already received clearance from Customs.
5. Thereafter, the aforesaid container was detained vide Panchnama dated 13.03.2012 and later on, it was examined on 14.03.2012 at ICD, TKD. On examination, it was found that other than the deodorants, there was huge quantity of other goods such as soaps, perfumes, cigarettes in the container which were not declared in the Bill of Entry filed for the clearance of the container. Since the Petitioner had tried to clear these undeclared goods by mis-declaration, the aforesaid whole container was seized by the DRI officers under the provisions of Customs Act, 1962 vide Panchnama dated 14.03.2012.
6. During the pendency of investigation, the Petitioner admitted the fact that he was the actual importer of the goods in the container and requested the DRI officers vide Letters dated 08.08.2012 and 05.09.2012 for provisional release of the goods since the same were likely to be deteriorated but no response was given by DRI.
7. After completion of investigation, the DRI issued a Show Cause Notice bearing DRI F.No.338-XIV/28/2012 dated 12.09.2012 to the Petitioner, whereby the total wholesale market value of all the imported goods was calculated at Rs.2,32,12,380/- (Rupees Two Crore Thirty-Two Lakh Twelve Thousand Three Hundred and Eighty only). It was further proposed to explain as to why imported goods should not be confiscated under Section 111(d), (f), (g), (j), (l) and (m) of the Customs Act, 1962 and penalty should not be imposed under Section 112(a), 112(b), 114A and 114AA of the Customs Act, 1962.
8. Pursuant to the issuance of the show cause
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