Form No.J(2)

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

Present :

The Hon’ble Justice Raja Basu Chowdhury

WPA 6525 of 2025

Phonex Logistics Pvt. Ltd.

versus

Union of India & Ors.

For the petitioner : Mr. Chirag Shetty

Ms. Shreya Mundhra

For the CGST Authority : Mr. Ahok Kumar Chakraborti, Ld. ASG

Ms. Rashmi Bothra

For the Customs : Ms. Manasi Mukherjee Authorities Mr. Bijitesh Mukherjee

Heard on : 29.10.2025. Judgment on : 29.10.2025

Raja Basu Chowdhury, J (Oral):

1. By consent of the parties the matter is taken up for final

consideration on the basis of the available records.

2. The instant writ petition has been filed, inter alia, not only

challenging Regulation 5(2) and 6(1)(o) of Handling of Cargo in Customs Area Regulations, 2009 (hereinafter referred to as the “said Regulation”) as being ultra vires the Customs Act, 1962 (hereinafter referred to as the “said Act”) but also seeking for a specific direction upon the respondents to refund the amount paid

by the petitioner on account of cost recovery charges, by claiming an exemption from payment of cost recovery charges.

3. Mr. Shetty, learned advocate representing the petitioner after arguing the matter for some time, on instruction, has submitted that the petitioner no longer insists on maintaining the challenge insofar as the claim of declaration for Regulation 5(2) and 6(1)(o) of the said Regulation as ultra vires the said Act. He would, however, insist and having regard to the Circular issued by the Central Board of Excise and Customs dated 12th September, 2005 and 19th January, 2021, the petitioner is entitled to the exemption from payment of cost recovery charges as the petitioner is otherwise eligible for exemption in terms of the above Circulars.

4. Mr. Chakraborti, learned Additional Solicitor General appears on behalf of the respondent nos.1 and 2 and Ms. Mukherjee, learned advocate appears on behalf of the respondent nos. 3 to 8.

5. Having heard the learned advocates appearing for the respective parties I find that the petitioner is a Container Freight Station (CFS) and is engaged in facilitating imports to and exports from India of containerized cargo. It is the petitioner’s case that the petitioner was appointed custodian under Section 45 of the said Act and was providing cargo handling service. As the respondent no.1 had deployed customs staff at its CFS for assessment, levy and collection of taxes, in terms of Regulation 5(2) of the said Regulation, the petitioner is required to undertake and bear the cost of customs officers posted at the customs area on cost recovery basis. Similarly in terms of Regulation 6(1)(o) of the said Regulation, the petitioner as customs cargo service provider is required to pay cost of customs officer posted on cost recovery basis unless exempted by an order. To morefully appreciate the same the relevant Regulations being Regulation 5(2) and 6(1)(o) of the said Regulation are reproduced hereinbelow:-

“5. Conditions to be fulfilled by Customs Cargo Service provider -

The Customs Cargo Service provider for custody of imported goods or export goods and for handling of such goods in a customs area shall fulfil the following conditions, namely:-

....

(2) Undertake to bear the cost of the Customs officers posted, at such customs area, on cost recovery basis, by the Principal Commissioner or Commissioner, as the case may be and shall make payments at such rates and in the manner prescribed, unless specifically exempted by an order of the Government of India in the Ministry of Finance;

Xxx xxx xxx

6. Responsibilities of Customs Cargo Service provider:

(1) The Customs Cargo Service provider shall -

......

(o). shall bear the cost of the customs officers posted by the Principal Commissioner of Customs of Commissioner of Customs, as the case may be on cost recovery basis and shall make payments at such rates and in the manner specified by the Government of India in the Ministry of Finance unless specifically exempted by an order of the