A custodian of a customs facility who has contractually agreed to pay cost recovery charges and has availed customs supervision is liable for payment. Such liability cannot be evaded by challenging administrative formalities regarding post-sanctioning after having operated and enjoyed the benefits of the custom-supervised facility.

JUDGMENT :

Rai Chattopadhyay, J.

(1) Three notices of demand issued against the petitioner No.1/company, for the alleged outstanding amount on account of cost recovery charges, dated (i) April 4, 2016, (ii) July 2, 2020 and (iii) November 10, 2020 respectively and a letter of the respondent dated August 12, 2020, imposing restrictions/suspension of movement of incoming container/cargo, to the Container Freight Station [CFS] of the petitioner No.1/company at Haldia/Kolkata port with effect from August 13, 2020, are under challenge in this writ petition.

(2) According to the respondent the writ petitioner/company, being the notified operator of the CFS at Haldia port and having been appointed as a 'custodian' under provision of section 45(1) of the Customs Act, 1962 of the goods imported and meant for export through Haldia/Kolkata port, via the said CFS, is obliged to pay to the respondent the cost recovery charges, in lieu of the manpower deployed by the respondent at the CFS, of which the petitioner No.1 is the operator, in accordance with the Regulation and Circular existing in this regard. The respondent says that the petitioner company, though initially has duly fulfilled its legal obligation of payment of cost recovery charges but subsequently has failed to comply with the same with effect from January 1, 2015 and has not remitted the charges any further. Hence, demand has been raised by the respondent firstly vide the notice dated April 4, 2016 and also subsequently vide the other two notices dated July 2, 2020 and November 10, 2020 respectively. However, the exercise culminated into futility as the petitioner company has allegedly never paid any attention to those demand notices for payment of the amount demanded on account of outstanding cost recovery charges.

(3) Due to non-remittance of the cost recovery charges by the petitioner, as stated to have been demanded in terms of the applicable Regulations, the impugned letter dated August 12, 2020 has been issued against it, imposing restriction/directing suspension of movement of the incoming container/cargo to the company‘s CFS from Haldia/Kolkata port with effect from August 13, 2020. The said letter reads as follows:

“F.NO. S37(Misc)-102/09P(Pt)SOA Dated: 12.08.2020

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Sub: Restrictions/suspension of movement of incoming container/cargo to M/s Apeejay CFS from Haldia/Kolkata port with effect from 13.08.2020-reg

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Due to non-payment of Rs. 5,04,51,775/- (Five crore four lakh fifty one thousand seven hundred and seventy five only) as cost recovery charges for the Custom Officers posted at M/s. Apeejay Infralogistics Pvt. Ltd., CFS of the period from 01.04.2016 to 29.02.2020, the following restrictions have been imposed:

(i) No new containers/cargo will be allowed to enter into the CFS w.e.f 13.08.2020.

(ii) The import/export containers/cargo which have already entered into the CFS as on 12.08.2020, the importers/Exporter/concerned parties are allowed to clear their goods on(or) before 12.09.2020.

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(4) The writ petitioner‘s case is otherwise; that the said company is not at all obliged under provision of any Regulation or Circular to pay the cost recovery charges to the respondent. The reason therefor has been stated to be due to non-fulfilment of the condition precedent for such charges to have accrued, by way of sanction of post meant for CFS and actual physical deployment of the man power at