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imposed a condition of "lockdown" in the country, it is referred to, hereinafter, as the "first lockdown order".

9. The Annexure to the aforesaid MHA Order dated 24th March, 2020 enumerated restrictions on the functioning of various establishments and services, many of which were to remain completely suspended or closed. Clauses 5 and 6 of the Annexure read thus:

b. Inter-state movement of goods/cargo for inland and exports.

K. Addition of sub clause (c) in exceptions to clause 6:

c. Cross land border movement of essential goods including petroleum products and LPG, food products, medical supplies."

Clearly, therefore, as the respondents before us have pointed out, there was no restriction on the movement of cargo, during the lockdown. We may note that the first lockdown was extended, initially, till 3rd May, 2020, vide MHA Order dated 14th April, 2020 ("the second lockdown"), thereafter, till 17th May, 2020 vide MHA Order dated 3rd May, 2020 ("the third lockdown") and till 31st May, 2020 vide MHA's order dated 17th May, 2020 ("the fourth lockdown"). Throughout, however, movement of cargo remained unrestricted.

On its plain terms, the afore-extracted order of the DGS was only "advisory" in nature.

12. The petitioners have placed on record Facility Circular No. 26/2020, dated 30th March, 2020, issued by the Commissioner of Customs, Chennai-IV, to "all importers, exporters, Customs Brokers, Custodians of CFSs, Port Terminal Operators, Shipping lines/Shipping Agents, PGAs, members of the Trade and all persons concerned", which notes the fact that, due to the lockdown announced by the Government, many import containers could not be cleared from the port, leading to congestion. In order to decongest ports, the Facility Circular communicated the decision of the Commissioner to allow movement of the containers en bloc to the CFSs and ICDs mentioned in Annexure A thereto. "As part of trade facilitation", CFSs and ICDs were directed not to charge more than the tariffs specified in the Facility Circular, which envisaged free storage of containers at CFSs and ICDs during the period of lockdown and 5 working days thereafter, and levy of transportation charges up to a maximum of ₹ 6000/- per 20 containers and ₹ 8,000/- per 40 containers. Interestingly, we may note even at this juncture, the stand of the respondents before us - including the MOS and the CBIC - that the Customs authorities did not possess the jurisdiction to direct CFSs and ICDs to mandatorily permit storage of containerised cargo in their premises free of charge during the period of lockdown. We may also note that no similar Circular, issued by any other Customs Commissionerate, has been placed on record in any of the petitions.

22. The above communications provoked a response, dated 23rd April, 2020, addressed by the CFSAI to the Chairman, JNPT. The CFSAI reiterated the fact that, even during the lockdown period, they had been functioning uninterruptedly, albeit with limited resources. As many as 1,04,000 containers had, it was pointed out, been evacuated from Terminals during the lockdown period, which itself stood testimony to the manner in which the CFSs were functioning. Even so, the CFSs voluntarily granted 10 days waiver of ground rent from 22nd to 31st March, 2020. They also considered, favourably, additional requests for waiver for essential cargo related to COVID-19 on a case-to-case basis. Despite this, against the 1,04,559 containers evacuated by CFSs in the JNPT alone, it was pointed out that importers had taken delivery only of 30,259 containers. The continued storage of the unclaimed containers had resulted in exponentially mounting costs on the CFSs. It was further pointed out that CFSs were employing almost 25,000 skilled and unskilled labour, and had been supporting them through the lockdown. In these circumstances, the CFSAI submitted that the advisories issued by the MOS and DGS were turning out to be counter-productive, as they incentivised importers not to take delivery of their consignments, which would be lying with the CFSs free of cost. CFSs were, in the process, overstocked with cargo. This, it was submitted, would result in a cascading adverse effect on the entire export-import trade. The CFSAI further submitted that CFSs functioned in accordance with the Handling of Cargo in Customs Area Regulations, 2009 ("the HCCAR") and that they were not bound by the instructions issued by the CBIC or other authorities. The tariff of CFSs - except for those located within the premises of Major Ports, which were a mere handful - were, it was submitted, not governed by the Tariff Authority for Major Ports (hereinafter "TAMP"), constituted under the Major Ports Act. The directions, to Major Ports, not to levy charges could not, therefore, it was submitted, be extended to CFSs, or impact the ground rent or demurrage charges lawfully chargeable by them. The CFSAI further pointed out that ground rent was charged only at the rates prefixed and predetermined, to which the importers were parties.