Customs, Excise & Service Tax Appellate Tribunal, South Zonal Bench At Chennai

Commissioner of Customs (Imports) Chennai V. Paragon Sales Agency

Appeal No. C/128/12 [Arising out of Order-in-Appeal No.C.Cus.247/2012 dt. 11.4.2012 passed by the Commissioner of Customs (Appeals), Chennai]. 14-08-2012

JUDGMENT

Revenue has challenged the impugned order by way of this appeal to the extent the observations made by the first appellate authority in paragraph 9 of the impugned order which is reproduced herein below :-

“The appellants have stated that as per the provisions of Regulation 6(l) of the Handling of Cargo in Customs Areas Regulations 2009, no rent or demurrage is chargeable on goods detained or seized or confiscated by the proper officer and sought for issue of a ‘detention/demurrage waiver certificate’. The appellants’ plea in this regard is reasonable and justified. The bill of entry has been filed on 6.7.2009 and the impugned order has been passed on 13.1.2012. It is not known why the lower authority had unduly taken the precious time of the appellants to pass the order. The appellants have stated that the file has been passed through three adjudicating authorities. Whether this is the reason behind the delay! Whatever, be the reason, the time lapse of more than two years to pass an order is strongly condemnable. The appellants cannot be forced to pay the demurrage and detention charges during the interregnum period as it appears to be the delay on the part of the department only. Trade should not be punished for the delay on the part of the revenue.’

2. In view of the above observations, the short issue before me is that whether the impugned order for waiving demurrage and detention charges against the respondents is correct or not.

3. The Revenue submits that as per Section 49 of the Customs Act, 1962, the respondents were asked to warehouse the goods in bonded warehouse as adjudication had taken long time but the respondents did not shift the goods to bonded warehouse. Therefore, the impugned order waiving the detention and demurrage charges is not correct by relying on the decision of this Tribunal in the case of Stonemann Royale Ltd. Vs CC (Imp.) Nhava Sheva - 2012 (280) ELT 407 (Tri.-Mumbai) and the Hon’ble High Court of Delhi in the case of Narayan International Vs UOI - 2007-TIOL-609-HC-DEL-CUS and Puneet Expo Vs UOI - 2011 (263) ELT 63 (Del.) and Punjab and Haryana High Court in Monika India Vs UOI 2010 (260) ELT 177 (P&H).

4. The learned AR also relied on the decision of this Tribunal in the case of Lukkad Impex and others vide Final Order No.1121-1123/10 dt. 7.10.2010. On the other hand, the learned counsel for the respondents drew my attention to Notification No.26/2009-Cus. (N.T.) dt. 17.3.09 which is in relation to Handling of Cargo in Customs Areas Regulations, 2009 vide Regulation 6(l) which is reproduced hereunder :-

“6. Responsibilities of Customs Cargo Service Provider.- (1) The Customs Cargo Service provider shall -

“(l) subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the proper officer;”

As per the said Regulation, any goods which are seized or detained or confiscated by the proper officer, rent or demurrage on the goods shall not be chargeable from the assessee. Therefore, the impugned order qua waiving demurrage and detention charges is correct and prayed that appeal be dismissed.

5. Heard both sides and considered the submissions. After considering the submissions made by both sides, I find that Regulation 6 (l) deals with the situation which is the issue before me. In this matter, the goods have been seized and they are required for investigation and further adjudication. Provisions of Regulation 6(l) of Handling of Cargo in Customs Areas Regulations, 2009 are applicable to the facts of this case. Further, I do not agree with the contention of learned AR that in 2009, vide letter dt.20.7.2009, the respondents were advised to shift the goods to bonded warehouse. In compliance to the said letter, the respondents approached the bonded warehouse but as there was no space in the bonded warehouse, same was intimated to the department. Further, the case law relied upon by the learned AR are not applicable to the facts of this case as in the case of Monika India (supra), Narayan International (supra) and Puneet Expo (supra), the goods were detained prior to the introduction of Handling of Cargo in Customs Areas Regulations, 2009. The case law relied upon by the learned counsel in the case of Stonemann Royale Ltd. (supra) is also not applicable to the facts of this case as in that case the goods were neither seized nor detained. The case law relied upon by learned AR in the case of Lukkad Impex (supra) is also not applicable as the issue dealt by this Tribunal in that case is not relevant to the grounds taken by Revenue in this appeal. Further, Notification No.26/09-Cus. (N.T.) dt. 17.3.2009 clearly explicit that if the goods are seized or detained by the proper officer, the assessee shall not be charged with any rent or demurrage on the goods. Therefore, the first appellate authority has rightly held in the impugned order that respondents are not liable to pay detention and demurrage charges. In view of these observations, I do not find any infirmity in para-9 of the impugned order. Same is upheld. The appeal filed by the Revenue is dismissed.

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