Madras High CourtWP/20828/2016dismissed

M/S.Thiru Rani Logistics (P) v. The Director General

2016-06-20Honourable Mr Justice T. S. Sivagnanam4 pages

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED:20.06.2016 C O R A M THE HON'BLE Mr.JUSTICE T.S.SIVAGNANAM W.P.No.20828 of 2016 and W.M.P.Nos.17848 & 17849 of 2016 M/s.Thiru Rani Logistics Pvt. Ltd., No.1, New North Ring Road, Madhavaram, Chennai - 600 110.

Represented by its Authorised Signatory, Mr.P.Manivasagam.

... Petitioner Vs 1.The Director General Directorate General of Human Resource Development, Customs and Central Exercise, C-4, IRCON Building, District Centre, Saket, New Delhi - 110 017.

6.Assistant Commissioner of Customs Sea Port, Custom House, No.60, ... Respondents Prayer: Petition filed under Article 226 of the Constitution of India praying for the issuance of a Writ of Certiorari to call for the records in F.No.S.Misc. 116/11-Appg. Docks dated 18.05.2016 issued by the 6th respondent and quash the same. For petitioner ...

Mr.P.Gridharan For respondents ...

Mr.K.Mohana Murali, S.P.C.

ORDER

Heard Mr.P.Giridharan, learned counsel for the petitioner and Mr.K.Mohana Murali, learned Standing Counsel accepting notice for the respondent Department. With their consent, the Writ Petition is taken up for final disposal. 2.The petitioner is an off dock Container Freight Station (CFS), which provides facilities for storing Containers, including movement of containers from and to Port, delivery of containers to customers etc. The petitioner was appointed as Custodian of Import and Export of goods under Section 45(1) of the Customs Act, 1962 vide Public Notice No.42/2010 and 43/2010 dated 21.05.2010 with effect from 01.06.2010. In terms of Clause 2.8 of Chapter 28 of the Customs Manual, the petitioner is required to pay cost recovery charges in respect of the Customs Officers deployed at the CFS, unless exempted by a specific order or a circular or instructions issued by the Ministry of Finance. To be entitled for grant of exemption, the concerned CFS should satisfy the conditions stipulated in Clauses 2.8 and 2.10 of the Customs Manual.

3.It is the case of the petitioner that even as early as 2013 they had achieved the benchmark for being eligible for grant of exemption of cost recovery charges and they made an application for grant of such exemption on 16.04.2013. It is pointed by the learned counsel for the petitioner that this application was recommended and forwarded by the 6th respondent. It appears that no orders were passed on the said representation and in 2015, the petitioner has made another representation on 11.04.2015 to consider their application for waiver of exemption of cost recovery charges. However, these subsequent epresentations followed by other letters were not considered. While so demand notice was issued to the petitioner on 31.12.2015 demanding a sum of Rs.25,32,523/. It is stated that this amount has been paid by the petitioner.

4.Be that as it may, the petitioner is said to have made another request on 29.03.2016 requesting for grant of exemption of cost recovery charges and they have enclosed all the earlier representations along with the representation dated 29.03.2016. This representation was addressed to the Chief Commissioner of Customs and it is stated that the Chief Commissioner of Customs has been delegated with the power to consider such applications for waiver and in this regard, the order passed by the 1st respondent dated 03.11.2015 was referred to. When this was the position, the 6th respondent sent a letter to the petitioner on 09.05.

2016 calling upon the petitioner to pay the cost recovery charges and also informing the petitioner that their request for waiver of cost recovery charges has been forwarded to the Chief Commissioner by letter dated 15.12.2015 in spite of the letter dated 09.05.2016 since the petitioner has not effected payment, the 6th respondent has issued a demand dated 18.05.2016 for Rs.45,76,369/-. This has been impugned in this writ petition. 5.From a perusal of Clauses 2.8 and 2.10 of the Customs Manual, it is seen that the cost recovery charges to be paid by the ICD/CFS may be waived subject to fulfillment of conditions laid down. The regulations uses the expression 'may' and it cannot be stated to be mandatory.

In any event, an exemption notification has to be strictly construed and a person claiming exemption has to fulfill all parameters and thereafter, it is for the authority to consider the plea of exemption. From a perusal of the proceedings of the 6th respondent dated 31.11.2015, it is seen that such authorisation given to the Chief Commissioner of Customs appears to be a one time measure and it is not clear as to whether this order still holds good and the Chief Commissioner of Customs would be entitled to consider the request for waiver of cost recovery charges. As long as the petitioner has not been granted an order of waiver in terms of Clauses 2.8 and 2.10 of the Customs Manual, he is bound to pay the cost recovery charges. Therefore, the impugned demand cannot be quashed. Accordingly, the Writ Petition fails and it is dismissed.

However, it is seen that the petitioner's application for waiver of cost recovery charges dated 29.03.2016 is pending, this Court is inclined to direct the 2nd respondent to consider such claim. Since the 6th respondent has informed the petitioner that their earlier request for waiver has been forwarded to the 2nd respondent through letter dated 15.12.2015, the learned Standing Counsel for the respondents submitted that reasonable time should be granted to the 2nd respondent to consider such a plea.

6.In the light of the above, while dismissing the Writ Petition and confirming the impugned demand, there will be a direction to the 2nd respondent to consider the petitioner's application/representation dated 29.03.2016 claiming exemption/waiver of cost recovery charges and pass orders on

merits and in accordance with law within a period of eight weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar(VI) //True Copy// Sub Assistant Registrar sgl To 1.The Director General Directorate General of Human Resource Development, Customs and Central Exercise, C-4, IRCON Building, District Centre, Saket, New Delhi - 110 017.

2.The Chief Commissioner of Customs, Chennai Custom House, No.60, 3.The Commissioner of Customs - Group IV, Custom House, No.60, 4.Joint Commissioner of Customs, Sea Port, Chennai-IV, Custom House, No.60, 5.Deputy Commissioner of Customs Sea Port, Chennai-IV, Custom House, No.60, 6.Assistant Commissioner of Customs Sea Port, Chennai-IV, Custom House, No.60, + 1cc to Mr.P. Girdharan, Advocate SR.33799 W.P.No.20828 of 2016 MSM(CO) EU 30.06.16