IN THE COURT OF THE LEARNED ADDITIONAL DISTRICT JUDGE, DISTRICT

COURT, SAKET, NEW DELHI

D.K. Jain vs. Container Corporation of India

Issues of the Case:

Whether the claim filed by the petitioner on the ground of Regulation 6(1) of Handling of
Cargo in Custom Area Regulation, 2009 is maintainable or not?
Whether the CONCOR is legally competent to receive the said charge from the plaintiff?
Whether the Collector of the Customs has right to issue a Detention Certificate
requesting the Warehouse Owner to waive the demurrage charges levied on the containers
mentioned therein?
1. It is humbly submitted that the petitioner has claimed the refund of the Ground rent on
the ground of Regulation 6(1) of the Handling of Cargo in Customs Area Regulations,
2009. It reads out:
Subject to any other law for the time being in force, the Custom Cargo Service Provider shall
not charge any rent or demurrage on the goods seized or denied or confiscated by the proper
officer.
It is very important to notice that the very provision starts with the exception i.e. subject to any
other law for the time being in force. This means that the provision is applicable only when
there is no other law in force which empowers the custodian to charge TSC/Ground Rent for
storage of import consignments. Now it is clearly stated under section 63 of the Customs Act that
The owner of any warehoused goods shall pay to the warehouse-keeper rent and warehouse
charges at the rate fixed under any law for the time being in force or where no rates are so fixed,
at such rate as may be fixed by the Commissioner of Customs.
Thus the defendants right to recovery of the ground rent is protected under section 63 of the
Customs Act. It is pertinent to mention that the handling of Cargo in Customs Area Regulations
2009, purport to be framed under section 141(2) & 157 of the Customs Act itself therefore the
instant regulation is not applicable to the instant case of otherwise.
It is further submitted that a subordinate legislation cannot neutralize the effect of the main
legislation or power to be exercised directly under the act. The CBEC regulation made under
sub-section 2 of the section 141 read with section 157 of the Customs act, 1962 is a subordinate
legislation and no sub-ordinate legislation can be made to neutralize the effects of the main
legislation i.e. Section 63 of the Act.

2. The above explanation is sufficient and also makes it clear that the defendant is
competent to receive the said charges from the petitioner.
3. It is humbly submitted that the issuance of the purported letter dated 12.04.2012, whereby
the commissioner of customs requested the defendant to consider the waiver of the
demurrage charges paid by the plaintiff for the period mentioned therein, is outside the
purview of the custom authority and the defendant is not under any obligation to refund
that Ground Rent paid by the plaintiff.
It is kindly submitted that Section 141, 157 & 158 deals with the those power of the
officers of the customs which are relevant in the present case.(The above-mentioned
sections have been elaborately cited on page 6 of the written statement filed by the
defendant). It is noted that neither the above-mentioned sections nor section 45(2) (b)
remotely suggest that the Customs Act, 1962 confers any power upon the customs
authorities to frame a regulation restraining the Customs Cargo Service Provider from
charging rent, or demurrage charges on the goods detained by the Custom Authorities.
Thus any regulation regulating the Customs Cargo Service Providers from charging rent
or demurrage charge shall be beyond the scope of the Customs Act.
Powers of Officers of Customs under Customs Act, 1962
(1) Subject to such conditions and limitations as the Board may impose, an officer of
customs may exercise the powers and discharge the duties conferred or imposed on him
under this Act.
(2) An officer of customs may exercise the powers and discharge the duties conferred or
imposed under this Act on any other officer of customs who is subordinate to him.
(3) Notwithstanding anything contained in this section, a Commissioner shall not exercise
the powers and discharge the duties conferred or imposed on an officer of customs other
than those specified in Chapter XV and section 108.
Thus, the detention certificate issued by the Commissioner of Customs inter-alia
directing the defendant to not to levy such charges as are due to it as per the Customs Act
are wholly untenable and bad in the law.