FAIRFAX INDUSTRIES LTD. Vs. COMMISSIONER OF CUSTOMS

JUDGEMENT

(1.) The petitioner has sought a direction upon the respondents to act in terms of the instructions dated August 18, 2011 issued by the Central Board of Excise and Customs (C.B.E.C.) and the public notice No. 52/2011 issued by the Commissioner of Customs (Port), Kolkata.

(2.) Learned Senior Advocate appearing for the petitioner has submitted that, C.B.E.C. issued the instructions/directions dated August 18, 2011 to the effect that, all Customs Cargo Service Providers should get weighbridges installed at their facilities preferably near entry/exit gates and that, all containers must be weighed. He has referred to the instructions/directions dated August 18, 2011. In terms of such instructions/directions, Kolkata Port Trust (KoPT) is obliged to have weighbridges installed at the entry and exit gates for weighment of containers. KoPT granted five sites to Hindustan Steel Work Construction Limited (HSCL) for construction of the weighbridges at the Kolkata Dock of the Kolkata Port Trust. HSCL entered into an agreement dated October 21, 2009 by which, the petitioner was required to install weighbridge equipments at the Port Trust land and operate the same on revenue sharing basis with HSCL. By a letter dated November 20, 2013, HSCL required the petitioner to deposit the upfront premium for the lease to set up the weighbridge facilities at Kolkata Port. On December 13, 2013 the petitioner deposited such sum with HSCL. According to the petitioner, HSCL in turn deposited the upfront lease premium with KoPT. By a letter dated February 25, 2014, HSCL informed KoPT that, HSCL appointed the petitioner as a contractor and that, the petitioner would be executing the job for installation and operation of the weighbridges. Thereafter, the petitioner set up five electronic weighbridges at Kolkata Dock of Kolkata Port and started operating the same in the name of HSCL on revenue sharing basis. According to the petitioner, five weighbridges are capable of weighing 100% of the containers in the port area.

(3.) Learned Senior Advocate appearing for the petitioner has submitted that, sometime in 2016, the petitioner observed that, Direct Port Delivery (DPD) and Direct Port Entry (DPE) containers passing through Kolkata Dock were not being weighed at the weighbridges of the petitioner. By a letter dated July 25, 2016, HSCL drew the attention of the Commissioner of Customs (Port) Kolkata, about the violations and requested remedial measures. By a letter dated August 2, 2016, the Customs authorities requested Kolkata Port Trust authorities to comply with the instructions contained in the public notice. However, Kolkata Port Trust authorities did not take any steps. HSCL complained to the Commissioner of Customs (Port) Kolkata whereupon, the Commissioner of Customs (Port) Kolkata issued a public notice dated October 7, 2016 reiterating that, in pursuance of the public notice bearing number 52/2011 all containers must be weighed. By the public notice bearing number 86/2016 the Commissioner of Customs (Port) Kolkata directed that, weighment of imported and export goods should be done in presence of a customs officer. Despite the customs authorities taking such a stand, Kolkata Port Trust authorities did not comply with the same. Kolkata Port Trust authorities allowed large number of DPD and DPE containers to pass through Kolkata dock of Kolkata port without the same being weighed at the weigh bridges installed by the petitioners.