AMARCHAND FULCHAND Vs. UNION OF INDIA

JUDGEMENT

(1.) THE petitioners are partnership firms and sole proprietary concerns carrying on business as importers and exports of pearls. The petitioners import raw pearls, which are then polished and strung and finished pearls are exported. Prior to June, 1985, consignments of imported pearls were delivered at Bombay through air freight/cargo and were cleared by the Customs Authorities through the Jewellery Section of the Air-cargo Complex at Sahar Airport. On receipt of intimation, the consignee used to present relevant documents to the Customs Authorities and the consignment was appraised and if found to be in order, the same was released by the Customs Authorities. The consignee was required to pay handling charges fixed by the Customs Authorities for such clearance and these charges were irrespective of weight and dimension of the package. Prior to February 1985, the said system was also followed in respect of consignment of pearls meant for export. The consignor was required to pay shipping bills in duplicate alongwith invoice and other documents and present it to the Customs Authorities. After the Customs Authorities were satisfied with the export order, permission was granted. The Customs Authorities used to levy charges in accordance with the Regulations.

(2.) SECTION 8 of the Customs Act 1962 inter alia provides that the Collector of Customs may approve proper places in any Customs port or Customs airport or Coastal port for the unloading and loading of goods or for any class of goods. Section 45 (1) of the Act provides that all imparted goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Collector of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. Sub-section 2 (b) of Section 45 provides that a person who is in custody of imported goods shall not permit such goods to be removed from the customs area except under and in accordance with the permission in writing of the proper officer. Section 156 of the Act confers power upon the Central Government to frame rules while Section 157 confers power upon the Board to make regulations consistent with the Act and the rules to carry out the purposes of the Act. Section 158 demands that all rules and regulations made under this Act shall be published in the Official Gazette. Sub-section 2 (i) of Section 158 inter alia confers power upon the Board to make regulation to provide for the levy of fees in respect of applications, amendment of documents, furnishing of duplicates of documents, issue of certificates and supply of statistics and for rendering of any services by officers of customs under the Act. The expression 'board' is defined under Section 2 (6) of the Act and means the Central Board of Excise and Customs constituted under the Central Boards of Revenue Act, 1963. In exercise of powers conferred by Sections 157 and 158 of the Customs Act, the Central Board of Excise and Customs has framed regulations known as Customs (Fees for Rendering Services by Customs Officers) Regulations 1968. Regulation 3 provides for levy of fees for rendering of services and Regulation 3 (1) provides that a fee as specified in the table shall be levied for the rendering of services under the Act by any of the customs officers enumerated in column (1) of the table. The table sets out that the Appraisers, Preventive Inspectors and Superintendents of Central Excise shall charge fees for rendering of services in accordance with the rates prescribed. The fees very from Rs. 11/- to Rs. 22/ -. The fees for services rendered between 8. 00 p. m. and 6. 00 a. m. and on Sunday and other holidays are more than the services rendered on regular days. It is not in dispute that the rates set out in table are amended from time to time.

(3.) THE Collector of Customs; Bombay by Notification dated November 22, 1984 issued in exercise of powers conferred under Section 8 of the Customs Act, specified the premises of Respondent No. 3 situated on 2nd floor, Diamond Plaza Building, Dr. Dadasaheb Bhadkamkar Marg (Lamington Road), Bombay-4 as the customs area for the purposes of storage and clearance of imported and exported cargo of diamonds, precious and semi-precious stones, pearls, jewellery made of gold or any other precious metal. Respondent No. 3 is a Company incorporated under the provisions of the Companies Act and a Government of India Undertaking. The Gem and Jewellery Export Promotion Council had suggested to the Central Government that the clearance of imported and exported jewellery and other precious metals should not be at the Air Cargo Complex at Sahar Airport but at the Diamond Bourse, established by Respondent No. 4 Company. The Respondent No. 4 is a Company incorporated under the provisions of the Companies Act with the object of establishing a bourse for the promotion of exports of diamonds from India and to provide infrastructure and other facilities for Indian and overseas buyers and sellers of diamonds. Respondent No. 4 - Bharat diamond Bourse is established on August 18, 1984 and was promoted by 16 members out of which 14 were prominent diamond exporters and the remaining two were office bearers of Respondent No. 3 Corporation. The Respondent No. 4 Bourse was intended exclusively for promotion of cut and polished diamonds and the membership of the Bourse was confined to diamond trade. The Gem and Jewellery Export Promotion Council, a body set up by Government of India, made repeated representations of the Government, Ministry of Commerce and to the Customs Authorities and the Respondent No. 3 to agree to clearance of all jewellery items including diamonds, pearls, gold jewellery etc. at the Customs Clearance Centre in the Bourse premises. The Government of India enquired from Respondent No. 3 and gave approval and thereafter, Respondent No. 3 asked the Collector of Customs, Bombay to issue Notification specifying the premises of the Bourse as the customs area. By notices dated June 1, 1985 and July 19, 1984 the Respondent No. 3 stipulated the rates of service charges on parcels cleared at Diamond Plaza Customs Clearance Centre, both for import and export parcels. Different rates are provided for members of the Bourse and non-members. In respect of import, the fee for members is Rs. 150/- upto 5 kgs. and Rs. 20/- per additional kg. , while for non-members Rs. 225/- upto 5 kgs. and Rs. 20/- per additional kg. Subsequently, the rates were reduced.