Madras High Court
Mrs.Trans Asian Shipping Services (P) ... vs The Assistant Commissioner Of Customs on 19 December, 2012
Author: R.Sudhakar
Bench: R.Sudhakar
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.12.2012 CORAM THE HONOURABLE MR. JUSTICE R.SUDHAKAR Writ Petition No.30632 of 2012 and M.P.No.1 of 2012 Mrs.Trans Asian Shipping Services (P) Ltd., represented by its Branch Manager, Abraham Mathew, EVS Tower, 2nd Floor, No.21, Radhakrishnan Salai, Mylapore, Chennai-600 004. ... Petitioner vs. 1.The Assistant Commissioner of Customs, USB Section Customs House, Chennai-600 001. 2.The Chennai Container Terminal (P) Ltd., Chennai Port Trust, Administrative Building, 2nd Floor, Rajaji Salai, Chennai-600 001. 3.The Chennai Port Trust, represented by Port Trust Chairman, No.1, Rajaji Salai, Chennai 600 001. 4.The Chennai Container Terminal (P) Ltd., Chennai Port Trust, Administrative Building, 2nd Floor, Rajaji Salai, Chennai-600 001, 5.The Chennai International Terminal (P) Ltd., 2nd floor North Wing, Jawahar Building, Opp. Custom House, No.17, Rajaji Salai, Chennai 600 001. (Second respondent is deleted as per order of this court dated 29.11.2012) ... Respondents Writ Petition is filed under Article 226 of Constitution of India praying to issue a Writ of Mandamus, forbearing the respondents 3 to 5 from demanding or collecting any port charges from the petitioner in respect of the containers bearing Nos.TGHU 3375688, TEXU 2365650, TLXU 2003738, FCIU 2135031, TLXU 2002177, GESU 2154951 and FSCU 3497184. For Petitioner : Mr.T.Sai Krishnan For Respondents : Mr.Haja Mohideen Gishti for R3. Mr.S.Raghunathan, for R4. M/s.Shivakumar and Suresh, for R5. No appearance for R1 R2 deleted ----- O R D E R
This Writ Petition is filed praying to issue a Writ of Mandamus, forbearing the respondents 3 to 5 from demanding or collecting any port charges from the petitioner in respect of the containers bearing Nos.TGHU 3375688, TEXU 2365650, TLXU 2003738, FCIU 2135031, TLXU 2002177, GESU 2154951 and FSCU 3497184.
2. Heard Mr.T.Sai Krishnan, learned counsel appearing for the petitioner; Mr.Haja Mohideen Gishti, learned counsel appearing for the third respondent; Mr.S.Raghunathan, learned counsel appearing for the fourth respondent and M/s.Shivakumar and Suresh, learned counsel appearing for the fifth respondent. None appears on behalf of the first respondent. Since the second and the fourth respondents are one and the same, the second respondent was deleted.
3. Petitioner in this case is a shipping company and involved in the business of carrying cargoes in the course of imports and exports for hire. It appears that seven containers were hired to individual parties for shipment and they arrived at port of Chennai as per the following details:-
S.No. Container No. Entry 1 TGHU 3375688, 24.05.2011 2 TEXU 2365650 28.08.2011 3 TLXU 2003738, 16.06.2011 4 FCIU 2135031 27.06.2011 5 TLXU 2002177, 13.08.2011 6 GESU 2154951 25.05.2011 7 FSCU 3497184 20.08.2011
4. The respondents 4 and 5 are operating the port terminal based on a licence agreement granted by the third respondent. In terms of the said license agreement the respondents 4 and 5 have to develop, design, construct, maintain and ultimately transfer the project facilities and services to the third respondent. In execution of this project, they are given the right to collect the storage charges from the container owners as the case may be. The scales of rates for levy on use of the container terminal by the container's operators has been fixed by the Tariff Authority for Major Ports (in short TAMP) in exercise of the power conferred under Section 48 of the Major Port Trusts Act, 1963 (Act No.38 of 1963). Notification is issued from time to time fixing the tariff and revising the same. Besides, the order, which is passed from time to time stipulates certain conditions as to how the TAMP order should be implemented.
5. For the purpose of the present case, we are concerned with TAMP order dated 15.5.2009 notified in G.No.85 dated 29.5.2009. Petitioner in this case claims that the cargo which arrived at the containers were abandoned by the owners of the cargo and the containers which were lying at the terminal is suffering tariff charges as per the TAMP Orders in force. It is the case of the petitioner that he informed the fourth respondent about the abandonment of the cargo on 13.1.2012 by letter addressed to the fourth respondent, followed by another letter dated 23.4.2012 addressed to the fifth respondent.
6. The present writ petition has been filed for a direction to forbear the respondents 3 to 5 from demanding or collecting any port charges from the petitioner in respect of the seven containers and in support of the plea in the writ petition, the TAMP Order dated 10.11.1999 notified in G.No.104 dated 6.12.1999 and the TAMP Order dated 19.7.2000 notified in G.No.120 dated 28.8.2000 had been relied upon.
7. This court hasten to add that the above two TAMP Orders will not apply to the present case. The TAMP Order dated 15.5.2009 notified in G.No.85 dated 29.5.2009 alone will apply and therefore, the said plea taken on the basis of the earlier orders is rejected. Coming to the present TAMP order dated 15.5.2009, the relevant clause 3.12.11 reads as follows:
"3.12.11 The storage charges on abandoned FCL containers/shipper owned containers shall be levied upto the date of receipt of intimation of abandonment in writing or 75 days from the date of landing of container, whichever is earlier subject to the following conditions:-
(i) The consignee can issue a letter of abandonment at any time.
(ii) If the consignee chooses not to issue such letter of abandonment, the container agent/MLO can also issue abandonment letter subject to the condition that,
a) The Line shall resume custody of container along with cargo and either take back or remove it from port premises; and
b) The Line shall pay all port charges accrued on the cargo and container before resuming custody of the container.
iii) The container Agent/MLO shall observe the necessary formalities and bear the cost of transportation and destuffing. In case of their failure to take such action within the stipulated period, the storage charge on container shall be continued to be levied till such time all necessary actions are taken by the shipping lines for destuffing the cargo.
(iv) Where the container is seized/confiscated by the Customs Authorities and the same cannot be destuffed, within the prescribed time limit of 75 days, the storage charges will cease to apply from the date the customs order release of the cargo subject to lines observing the necessary formalities and bearing the cost of transportation and destuffing. Otherwise, seized/confiscated containers should be removed by the Lines/consignees from the port premises to the Customs bonded area and in that case the storage charge shall cease to apply from the date of such removal."
8. It is the case of the petitioner that beyond 75 days, the respondents 4 and 5 who are licensed to operate under the third respondent cannot demand any charges for the container. Therefore, the invoices raised by the respondents 4 and 5 were called in question on the plea that beyond 75 days there is no liability to pay the storage charges.
9. At the time of admission on 16.11.2012, the following interim orders were passed:-
"The port storage charges have been demanded in respect of few containers which arrived in the month of May, June and August 2011, on the ground that it has not been cleared within sixty days. The Petitioner relies upon a letter dated 13.01.2012, calling upon the Customs Department to destuff the goods and sell the same. No action has been taken either by the Port Trust or by the Customs Department. Therefore, the demand now made by the Port Trust is challenged. The question as to whether the petitioner would be entitled to such a relief will have to be examined after noticing the respondents.
2. Mr.Hara Mohideen Gisti, learned counsel appearing for the respondents seeks time till 29.11.2012.
3. There will be an order of interim injunction till 29.11.2012. Post on 29.11.2012."
10. However, a counter-affidavit has been filed by the respondents 4 and 5 separately, taking the plea that they are only licensees to operate the terminal and collect storage charges in terms of TAMP order as applicable and the demand made by the respondents 4 and 5 is only in accordance with clause 3.12.11 of the TAMP Order. It provides that the Multi Line Operator (MLO), the petitioner in this case can resume custody of the container after payment of all port charges both in respect of cargo and container. Assuming that the cargo has been abandoned, even in respect of the container they are liable to pay storage charges. Further, clause 3.12.11 provides that in case of failure to take action within the stipulated period, storage charges on container shall be continued to be levied till such time all necessary actions are taken by the shipping lines for destuffing the cargo. In effect the clause 3.12.11 comes with rider that prompt action should be taken by the MLO/Petitioner to avoid payment of storage charges.
11. Even on fact it is apparent that from the date of entry which is set out above, the 75 days period is already over and the first letter of abandonment issued on 13.1.2012 is well beyond 75 days and therefore, the plea placing reliance on clause 3.12.11 has to be rejected. In any event, clause 3.12.11 provides further condition that if no action is taken within the stipulated period, the MLO/petitioner is bound to pay the storage charges.
12. All that the respondents 4 and 5 levied and demanded is storage charges for the container which were lying at the terminal from the date of entry to the date of exist. It is stated that the container has thereafter removed to the container freight station and the demand is only for the period during which the container was lying in the terminal. Therefore, the demand for storage charges for the period in question is justified as per the TAMP Order.
13. It is also stated by the counsel for the fifth respondent that the storage charges in respect of one container relatable to fourth respondent has been paid.
14. Be that as it may, on a reading of clause 3.12.11 of the TAMP Order dated 15.5.2009 as above it is clear that the demand made by the respondents 4 and 5 is based on the tariff determined by the Tariff Authority for Major Ports in exercise of power under Section 48 of the Major Port Trusts Act, 1963. Section 48 of the Major Port Trusts Act, 1963 reads as follows:-
48. Scales of rates for services performed by Board or other person:- (1) The Authority shall from time to time, by notification in the Official Gazette, frame a scale of rates at which, and a statement of conditions under which, any of the services specified hereunder shall be performed by a Board or any person authorised under section 42 at or in relation to the port or port approaches--
(a) transhipping of passengers or goods between vessels in the port or port approaches;
(b) landing and shipping of passengers or goods from or to such vessels to or from any wharf, quay, jetty, pier, dock, berth, mooring, stage or erection, land or building in the possession or occupation of the Board or at any place within the limits of the port or port approaches;
(c) cranage or porterage of goods on any such place;
(d) wharfage, storage or demurrage of goods on any such place;
(e) any other service in respect of vessels, passengers or goods, (2) Different scales and conditions may be framed for different classes of goods and vessels. Unless the above said provision is challenged in a manner known to law for any reason whatsover, the petitioner will have no justification to withhold the payment demanded by the respondents 4 and 5. There is no such endeavour in the present case.
15. Learned counsel for the petitioner relied upon Section 42(4) of the Major Port Trusts Act, 1963 to say that no person authorised under sub-section (3) shall charge or recover for such service any sum in excess of the amount specified by the Authority, by notification in the Official Gazette. Section 42(4) of the Major Port Trusts Act, 1963 reads as follows:-
(4) No person authorised under sub-section (3) shall charge or recover for such service any sum in excess of the amount specified by the Authority, by notification in the Official Gazette. I find no infraction of the above provision as the TAMP Order is issued from time to time invoking the above provision of law.
16. On a reading of clause 3.12.11 of the TAMP order dated 15.5.2009, the respondents 4 and 5 are justified in demanding the storage charges because it is on the basis of the order of the Tariff Authority for Major Ports. They are not demanding anything in excess other than what has been specified in the TAMP Order. Therefore, the said plea has no basis.
17. Learned counsel for the petitioner relied upon section 61 of the Major Port Trusts Act, 1963 which deals with sale of goods after two months if the rates or rent are not paid or lien for freight is not discharged. Section 62 of the Major Port Trusts Act, 1963 deals with disposal of goods not removed from premises of within time limit. These two provisions are relatable to the third respondent. No specific relief is sought for against the third respondent, in terms of Section 61 or 62 of the Major Port Trusts Act, 1963.
18. Petitioner's case is based on interpretation of TAMP Notification. In any event, the petitioner is relying upon an earlier Notification which had no relevance to the facts of the present case. It is another matter for the petitioner to seek remedy against the Port Trust, if so advised.
19. Insofar as the present case is concerned, no relief as sought for by the petitioner can be granted as the respondents 4 and 5 are demanding payment in accordance with the TAMP Order dated 15.5.2009 notified in G.No.85 dated 29.5.2009. There is no error or illegality in the same. The interpretation made by the petitioner to decline the payment is not justified and is not supported by any provision of law. Hence, the said plea is rejected.
20. Finding no merits, this writ petition is dismissed. No costs. The interim injunction already granted in M.P.No.1 of 2012 is vacated and the miscellaneous petition is also dismissed.
19.12.2012
Index: No
Internet:Yes
ts
To
1.The Assistant Commissioner of Customs,
USB Section Customs House,
Chennai-600 001.
2.The Port Trust Chairman,
Chennai Port Trust,
No.1, Rajaji Salai,
Chennai 600 001.
3.The Chennai Container Terminal (P) Ltd.,
Chennai Port Trust,
Administrative Building, 2nd Floor,
Rajaji Salai,
Chennai-600 001,
4.The Chennai International Terminal (P) Ltd.,
2nd floor North Wing,
Jawahar Building,
Opp. Custom House,
No.17, Rajaji Salai,
Chennai 600 001.
R.SUDHAKAR,J.,
ts
Order in
W.P.No.30632 of 2012
Date 19.12.2012