ORDER
S.R Nayak, J
1. This writ petition is directo), against the Public Notice No.9/2001 Customs dated 3-2-2001 issued by the Commissioner of Central Excise and Customs, Guntur (the Commissioner, for brevity), the first respondent herein.
2. The petitioner is a Company incorporated under the Company’s Act, 1956, in the year 1989 and having its registered office at Plot No.1497, J-Block, 16th Main Road, Anna Nagar, Chennai 600 040. According to the petitioner, it is involved in the business of clearing and forwarding the goods, which arrive at various ports and also those, which are meant for export to other countries.
3. The petitioner-Company has been granted licence to act as Custom House Agent (CHA, for brevity) by the Commissioner vide CHA Licence No.5/91 (Regular) which has since been renewed vide C.No.VIII/13/5/99-Cus. Tech., dated 15-11-1999 and valid upto 25-11-2004. As per the licence issued, the licensee is authorised to transact business as Customs House Agent at ICD Reddipalem, Guntur.
4. The Container Corporation of India Limited, Guntur, (CONCOR, for brevity), the 2nd respondent herein after developing the area and upgrading the facilities by providing infrastructure at ICD, Reddipalem, Guritur and furnishing the Undertakings and requisite Bond, as required in Boards Circular No.128/95, dated 14-12-1995 requested the Commissioner for re-notification of the “Customs Area” and appointment of CONCOR as the Custodian. After inspection of the new facilities and scrutiny of the Undertakings, the Commissioner issued notification No,l/2001 dated 17-1-2001 appointing CONCOR as the Custodian and Public Notice No.9/2001 dated 3-2-2001 prescribing the procedure to be followed at ICD, Reddipalem, Guntur for Imports/ Exports.
5. The impugned notification inter alia provides:
“……..For factory stuffing CONCOR shall arrange for movement of empty containers to the Factories for stuffing and after completion of stuffing and customs sealing it is the responsibility of CONCOR as a Custodian to transport by Rail/Road to the Gateway Port directly therefrom. They will also be responsible for the safe delivery of the (stuffed) export containers to the gateway ports. The notifications/permissions granted for transportation of customs sealed export containers as the gateway ports other than by means arranged by the authorised custodian viz., M/s CONCOR will henceforth be discontinued i.e., in all cases where shipping bills are filed with ICD, Reddipalem, Guntur, sjnce all Export Containers after Customs sealing will be moved to the Gateway Ports under the Custodianship of CONCOR.”
6. The impugned public notice among other things also provides-
“The CONCOR shall be solely responsible for the carriage of the goods from the ICD, Reddipalem, Guntur to the Gateway Ports, as the case may be (upto on Board the Vessel and till the mate receipt is issued by the Captain of the Vessel)”.
7. Complaining that the effect of the impugned public notice is to confer monopoly on the CONCOR to transport goods and oust the petitioner and like others from the business of transport, the writ petition is filed assailing its validity and legality. In paras 3 and 4 of the affidavit filed in support of the writ petition, it is stated-
“3. The petitioner respectfully submits that the functions of a CHA are two fold. The first part of the CHA’s work is to clear the goods from the port, in case of import, by doing the necessary paper work and obtaining clearance from Custdin and Central Excise authorities to move the goods. In case of exports, the goods are cleared for export from the container terminals either at the port or at other places. After complying with all the procedural formalities, the goods are loaded into the ships bound for the country of destination, in case of exports or sent to the concerned importer. Thus after the paper work is completed, the goods have to be necessarily transported to either the warehouse of the importer or to the concerned port for export. This forms the second major activity of a Customs House Agent. Since the CHAs act as the agents of the importer or exporter, as the case may be, they are incharge of the goods until the goods are properly delivered at the right destination. The customs authorities are vested with wide powers to search any conveyance, when the goods are being transported, and only the CHAs would be competent to answer the questions put by the authorities since they have cleared the concerned goods for import or export. The CHAs are also answerable to their principals, namely the Importers or Exporters, if for any reason the goods are delayed or have been detained anywhere during transportation. The CHAs therefore have to necessarily take charge of the transportation of the goods also.
4. In fact, the Customs House Agents Licensing Rules, 1984, at Rule 10(2Xb) clearly lays down that to qualify for the grant of a regular CHA licence, the applicant must show that it possesses transportation facilities. Only then a regular licence is issued. Thus even the statute recognises that the CHAs are the persons who are normally entrusted with the transport of the goods cleared by them. Since the transportation of such goods can either be through road, rail, inland waterways or sea, depending upon each case. The CHAs must possess the means for such transportation. The petitioner herein has in fact obtained a Multimodel transport operation licence issued by the Ministry of Surface Transport and is licensed to carry cargo on a warehouse to warehouse basis using more than one mode of transport. Thus transportation of goods is a major activity of any CHA and this also forms a major source of revenue for the Custom House Agents.”
8. In response to Rule Nisi, respondents 1 and 2 have filed detailed counter-affidavits opposing the writ petition.
9. Assailing the impugned public notice, Sri S. Ravi, learned Counsel for the Petitioner, would contend that the impugned public notice is issued by the Commissioner without any authority or power and is liable to be set aside; the provisions of the Customs Act, 1962 (the Act, for brevity) do not lay down the stipulations or conditions on either the means of transport or Custodians to be incharge of the transport; the Central Board of Excise and Customs (CBEC, for brevity), has in its letter F.No.434/17/94-cus. IV, dated 16-5-1994 clarified that there is no restriction that the goods for Import/Export should be transported or to be under the Custodianship of only a Public Sector entity; the Commissioner does not have the power or the authority to appoint a single entity as a Custodian for transport of the Export/Import goods/containers; the Commissioner can only issue notification to ensure that the provisions of the Act, more particularly with regard to the procedure prescribed therein, are duly followed. The learned Counsel would also contend that the impugned Public Notice violates the right of the petitioner guaranteed under Article 19(I)(g) of the Constitution of India, i.e., the right to carry on any trade or business of its choice; as a result of the impugned notice the CHAs including the petitioner are unable to transport the goods/ containers as the power to do so now vests only with the CONCOR; the Commissioner through the impugned public notice has conferred monopoly rights to CONCOR in respect of transfer of goods and containers from and to ICD, Reddipalem, Guntur. The learned Counsel would also contend that the petitioner-Company has current licence valid upto 25-11-2004 and, therefore, it has invested huge sums of money into the business in building a net work of transporters and since the petitioner-Company possesses a valid licence to operate as CHA and has been doing heavy volume of business at ICD, Reddipalem, Guntur, the impugned action of the first respondent is totally arbitrary and unjust apart from vioJative of the petitioner’s right under Article 19(l)(g) of the Constitution. The learned Counsel would also contend that though in the impugned public notice the source of power of the Commissioner is not disclosed, it is issued in the purported exercise of power conferred upon him under Section 45 of the Act and if that is so, Section 45 of the Act does not permit him to issue the impugned public notice governing export of goods. Further, Sections 50 and 51 of the Act which deal with clearance of Export goods do not authorise the Commissioner to issue the public notice of the nature impugned in this writ petition.
10. On the other hand Sri L Narasiinha Reddy, learned senior Standing Counsel for Government of India; would at the threshold contend that the petitioner cannot be said to be an aggrieved person by issuance of the impugned public notice inasmuch as none of its legal rights are infringed or affected and, therefore, the writ petition filed by it is not maintainable. The obligations imposed on the petitioner-Company in its status as CHA under Regulation 14 of the Customs House Agents Licensing Regulations, 1984 (the Regulations, for brevity) do not include the obligation of the petitioner to transport the goods. The learned senior Standing Counsel would point out that in exercise of the power conferred under Section 45 of the Act, the Government of India, Ministry of Finance, Department of Revenue, CBEC, have issued standard set of guidelines for appointment of Custodians of EPZ’s/ICDVCFS’s vide Circular No.128/95 dated 14-8-1994 and in this Circular, the Board notified the guidelines on Undertakings to be given by the Custodians before being appointed as Custodians of ICD’s/CFS’s/ EPZ’s by the Commissioner of Customs, who is the competent authority for appointing the Custodian under Section 45 of the Act. The learned Standing Counsel would also draw the attention of the Court to Ministry of Finance, DOR Circular No. 77/95 dated 30-6-1995, Ministry of Finance, DOR, Circular No.128/95, dated 14-12-1995 and Ministry of Finance, DOR, Circular No.57/98, dated 4-8-1998 and would maintain that the Commissioner was well within his powers to issue the public notice to prescribe a procedure to be followed by the Customs Station/Port and the procedure prescribed in the impugned public notice is in total conformity with the instructions incorporated in those Circulars.
11. Mr. P. Pratap Reddy, learned Counsel appearing for CONCOR, the 2nd respondent herein, adopts the argument of the learned Senior Standing Counsel for Government of India and supports the impugned public notice.
12. The licence to the petitioner-company is issued under Section 146 of the Act. Section 146 reads:
“146. Customs house agents to the licensed:–(1) No person shall carry on business as an agent relating to the entry or departure of a conveyance or the import or export of goods at any custom-station unless such person holds a licence granted in this behalf in accordance with the regulations.
(2) The Board may make regulations for the purpose of carrying out the provisions of this section and, in particular, such regulation may provide for-
(a) the authority by which a licence may be granted under this section and the period of validity of any such licence;
(b) the form of the licence and the fee payable therefore;
(c) the qualifications of persons who may apply for a licence and the qualifications of persons to be employed by a licensee to assist him in his work as an agent;
(d) the restrictions and conditions (including the Furnishing of security by the licensee) subject to which a licence may be granted;
(e) the circumstances in which a licence may be suspended or revoked; and
(f) the appeals, if any, against an order of suspension or revocation of a licence, and the period within which such appeals shall be filed.”
13. Sub-section (2) of Section 146 empowers the Board to make Regulations for the purpose of carrying out the provisions of Section 146, and in particular, on the subjects enumerated in Clauses (a) to (f)-Accordingly, in exercise of that power, the Board has framed the Regulations. Regulation 2(c) defines “Custom House Agent”. It reads:
“(c) “Customs House Agent” means a person licensed under these regulations to act as agent for the transaction of any business relating to the entry or departure of conveyances or the import or export of goods at any customs station”.
Section 2(9) of the Act defines “conveyance” as follows:
“2 (9). “conveyance’ includes a vessel, an aircraft and a vehicle”.
Section 2(11) defines “customs area” which reads:
“2(11) “customs area” means the area of customs station and includes any area in which imported goods or export goods are ordinarily kept before clearance by Customs Authorities.
Section 2(12) defines “customs port” as follows:
“2(12) “customs port” means any port appointed under clause (a) of Section 7 to be a customs port and includes a place appointed under clause (aa)-of that section to be an inland container depot.
Section 2(13) of the Act defines “Customs Station”, which reads-
“2(13). “customs station” means any customs port, customs airport or land customs station”.
14. Regulation 4 deals with invitation of applications by the Commissioner; Regulation 5 prescribes the form of application to be made under Regulation 4; Regulation 6 deals with conditions to be fulfilled by the applicant; Regulation 8 provides for grant of temporary licence; Regulation 9 deals with examination of the applicant for the licence; Regulation 9(3) provides:
“9. Examination of the applicant-
(l)xxx
(2) xxx
(3) The examination may include questions on the following-
(a) preparation of various kinds of bills of entry and shipping bills;
(b) arrival entry and clearance of vessels; (c) tariff classification and rates of duty; (d) determination of value for assessment; (e) conversion of currency; (f) nature and description of documents to be filed with various kinds of bills of entry and shipping bills; (g) procedure for assessment and payment of duty; (h) examination of merchandise at the Customs Stations; (i) provisions of the Trade and Merchandise Marks Act, 1958 (43 of 1958); (j) prohibitions on import and export; (k) bonding procedure and clearance from bond; (1) re-importation and conditions for free re-entry; (m) drawback; (n) offences under the Act;
(o) the provisions of allied Acts including Imports and Exports (Control) Act, 1947 (18 of 1947), Foreign Exchange Regulations Act, 1973 (46 of 1973); Indian Explosives Act, 1884 (4 of 1884), Arms Act, 1959 (54 of 1959), Opium Act, 1878 (1 of 1878), Drugs and Cosmetics Act, 1940 (23 of 1940), Destructive Insects and Pests Act, 1914 (2 of 1914), Dangerous Drugs Act, 1930 (2 of 1930) insofar as they are relevant to the clearance of goods through customs;
(p) procedure in the matter of refund of duty paid, appeals and revision petitions under the Act”.
15. A perusal of Regulation 9(3) makes it clear that the syllabus for the examination does not include anything relating to transport of goods at all.
16. The contention raised by the learned Counsel for the petitioner in paragraphs 3 and 4 of the affidavit that the functions of a CHA are two fold, the first part being ‘paper work’ after clearing the goods and the second part being ‘transport of goods’, is neither justified nor legally tenable. The inference sought to be drawn by the petitioner in that regard is not in accordance with either the Act or the Regulations made thereunder. Regulation 14 lays down certain obligations of the CHA in Clauses (a) to (p). Regulation 14 reads:
“14. Obligations of Custom House Agent:–A Custom House Agent shall:
(a) obtain an authorisation from each of the companies, firms or individuals by whom he is for the time being employed as “Custom House Agent and produce such authorisation whenever required by an Assistant Commissioner of Customs or Deputy Commissioner of Customs;
(b) transact business in the Customs Station either personally or through an employee duly approved by the Assistant Commissioner of Customs or Deputy Commissioner of Customs designated by the Commissioner;
(c) not represent a client before an officer of Customs in any matter to which he, as officer of the Department of Customs gave personal consideration, or as to the facts of which he gained knowledge, while in Government service;
(d) advise his client to comply with (he provisions of the Act and in case of non-compliance, shall bring the matter to the notice of the Assistant Commissioner of Customs or Deputy Commissioner of Customs;
(e) exercise due diligence to ascertain the correctness of any information which he imparts to a client with reference to any work related to clearance of cargo or baggage;
(f) not withhold information relating to clearance of cargo or baggage issued by the Commissioner of Customs from a client who is entitled to such information;
(g) promptly pay over to the Government, when due, sums received for payment of any duty, tax or other debt or obligations owing to the Government and promptly account to his client for funds received for him from the Government or received from him in excess of Governmental or other charges payable in respect of the clearance of cargo or baggage on behalf of the client;
(h) not procure or attempt to procure directly or indirectly, information from the Government records or other Government sources of any kind to which access is not granted by proper officer;
(i) not attempt to influence the conduct of any official of the Customs Station in any matter pending before such offical or his subordinates by the use of threat, false accusation, duress or the offer of any special inducement or promise of advantage or by the bestowing of any gift or favour or other thing of value;
(j) not refuse access to, conceal, remove or destroy the whole or any part of any book, paper or other record, relating to his transactions as a Custom House Agent which is sought or may be sought by the Commissioner;
(k) maintain records and accounts in such form and manner as may be directed from time to time by an Assistant Commissioner of Customs or Deputy Commissioner of Customs and subnfit them for inspection to the said Assistant Commissioner of Customs or Deputy Commissioner of Customs or an officer authorised by him whenever required;
(l) ensure that all documents prepared or presented by him or on his behalf are strictly in accordance with orders relating thereto;
(m)ensure that all documents, such as bills of entry and shipping bills delivered in the Customs Station by him show the name of the importer or exporter, as the case may be, and the name of the Custom House Agent, prominently at the top of such documents;
(n) in the event of the licence granted to him being lost, immediately report the fact to the Commissioner;
(o) ensure that he discharges his duties as Custom House Agent with utmost speed and efficiency and without avoidable delay; and
(p) not charge for his services as Custom House Agent in excess of the rates approved by the Commissioner from time to time under Regulation 25.” None of the obligations enumerated in Regulation 14 envisages the role of a CI-IA as a transporter.
17. However, Mr. S. Ravi, learned Counsel for the petitioner, placing reliance on Regulation 10(2)(b) would contend that possession of a transport facility is also one of the essential qualification for an applicant for CHA licence- The contention of the learned Counsel is not well founded and not tenable. Regulation 10(2)(b) reads-
“10. Grant of regular licence :–(1) xxx
(2) The Custom House Agents who are granted regular licences under Regulation 10, shall be eligible to work in all Customs Stations subject to fufilment of the following requirements:
(a) xx
(b) he fulfils the conditions stipulated in clause (b) of Regulation 6 relating to financial soundness and possesses the ability to provide adequate warehousing and transport facilities at the place of clearance of goods and production of evidence relating to availability of sufficient clientele at his disposal.”
18. In terms of Regulation 10(2)(b) that an applicant for the CHA licence should satisfy the authority that he is financially sound and possesses the ability to provide adequate warehousing and transport facilities. Regulation 10(2)(b) is subject to Regulation 6(b) which categorises the Customs Stations into two groups and the CHA should have assets of the value of not less than Rs.One lakh in the case of the first group and not less than Rs.50,000/- in the case of second group. Secondly, as could be seen from the definition of CHA in the Act and in Regulation 10(2)(b), the area of activity of a CHA is limited to ‘at any Customs Station’ and ‘at the place of clearance of goods’. These unambiguous terms expressly limit the role and responsibility of the CHA to the ports for which he or it has been given licence. In taking this view, we are fortified by the judgment of the Calcutta High Court in D. Sengitpta v Collector of Customs and others, 1987 (31) ELT 30 (Cal), with which we are in respectful agreement. Paragraphs 34 and 35 of the said judgment read:
“34. ………. The clearing agent is not a person within the meaning of Section 124 of the said Act for the purpose of service of notice after the goods have been assessed and cleared from the customs. Under Section 2(c) of the Customs House Agents Licensing Regulations, 1984 “Customs House Agent” means a person licensed under these regulations to act as agent for the transaction of any business relating to the entry or departure of conveyance or the import or export of goods at any customs station.
35. Custom station has been defined in Section 2(15) of the Customs Act, 1962, which means any customs port, customs airport or land customs station. Accordingly, the clearing agent is only an agent of the importer for a limited purpose of clearance of the goods. Once the goods have been cleared from the customs station and the goods after clearance are in the custody either of the importer or the owner or any other person, the clearing agent ceases to be an agent of the importer. The clearing agent cannot be treated as an agent of an importer for all time to come solely on the ground that the importer is the owner of the goods and the goods are found lying in his custody. The importer may sell the goods immediately after it has been imported. The person from whose custody the goods may be seized subsequent to the clearance may be a person other than the importer or the owner. The clearing agent ceases to be an agent of the importer after clearance of the goods from the customs station. The clearing agent has no further function to discharge after removal of the goods from the customs station. He cannot be treated as an agent for all time to’ come even after the goods have been cleared.”
19. As could be seen from the foregoing provisions of the statute and the judicial pronouncement, the role of a CHA is limited to the obligations as laid down in Regulation 14. The requirement of ability to provide adequate warehousing and transport facilities at the place of clearance of goods as required under Regulation 10(2)(b) is only for the purpose of assisting the exporter or importer for whom the CHA acts as an agent for transport of goods from the customs area to the premises or the importer or vice-versa. In the case of exports, after clearance by the Customs at the Customs area, his responsibility as agent of the Exporter/Importer ceases. In that view of the matter, there is no substance in the contention of the learned Counsel for the petitioner that the transportation of goods is a major activity of any CHA and that the Act recognises that CHAs are persons who are normally entrusted with the transport of goods. The contention of the petitioner that it has obtained Multimodel Transport Operators Licence from the Ministry of Surface Transport and is licensed to carry the cargo on a warehouse to warehouse basis has nothing to do with its obligations as a licensed CHA. The Multimodel Transport Operator Licence was issued to the petitioner-company not under the provisions of the Act, but under the provisions of the Registration of Multimodel Transport Operators Rules, 1992.
20. We are also not in agreement with the contention of the learned Counsel for the petitioner that the impugned public notice is issued by the Commissioner without any authority of law and, therefore, ultra-vires of the Act. The Commissioner by issuing the impugned public notice has prescribed the procedure to be followed at the ICE), Reddipalem, Guntur for exports/imports. The said notice, in our considered opinion is in conformity with the Rules framed by the Board and the Circulars issued by the Ministry of Finance, dated 30-6-1995, 14-12-1995 and 4-8-1998. The Circular of Ministry of Finance, dated 14-12-1995 reads:
“Guidelines on undertaking to be given by the Custodians before being appointed as Custodians of ICDS/CFS/EPZs.
1. The custodian should provide safe, secure and spacious premises for loading/unloading/storing of the cargo. The infrastructure for loading/ unloading and storage operations should be designed to handle a minimum traffic of atleast 10 TEU per day (two way). The premises should be so designed that there should be provision for expansion of storage space, office accommodation, handling space, etc., for a period of 10 years;
2. Custodian shall provide sufficient modern handling equipment in operational condition for handling the containers and cargo in the area;
3. No. alteration of the plan in the accommodation, boundary wall and building etc., shall be made without the concurrence of the Commissioner of Customs;
4. Insurance of all goods held in the ICD/CFS shall be made by the Custodian;
5. Custodian shall abide by all the rules and regulations under the Customs Act;
6. For proper discharge of duties the custodian shall execute a bond equal to the value of the goods likely to be stored in the premises for a period of 30 days, supported by a bank guarantee or a Government bond or cash deposit equivalent to 10% of the value of goods;
7. The custodian shall bear the duty on the goods lost or pilfered from the CFS/ICD;
8. The custodian shall give separate bond with sufficient bank guarantee of the value of the bond towards the duly element of the Export goods transported from the customs area to the gateway port/any other customs area for export/transshipment. Custodian would also be held responsible for the delay and for other penalties leviable for the goods lost during transshipment from the said customs area to the gateway port/ other customs area;
9. Security of the premises shall be the responsibility of the custodian subject to the prior approval of the Commissioner of Customs of the arrangements. The cost for the security has to be borne by the Custodian;
10. Custodian shall bear the cost of the Customs staff, posted for the ICD/ CFS/EPZ. The Commissioner of Customs shall decide the number of staff which is required to be posted in the facility considering the work load in the station;
11. Custodian shall provide free furnished office space for the Customs Department;
12. Residential accommodation for the customs staff posted in the area shall also be provided for by the custodian, wherever requisitioned by the Commissioner of Customs;
13. Free suitable transport from the nearest Railway-head or suitable point shall be provided for the customs staff by the custodian;
14. In the ICD/CFS/EPZ the custodian shall make adequate arrangements for sanitary facilities, water supply and other allied facilities, including canteen facility, for the officers working in the area;
15. Custodian shall not charge any rent/ demurrage on the goods detained by Customs Department under the Customs Act or any other Act for the time being in force. However, the Customs Department shall pay the rent to the Custodian after the ownership of the goods vests in the Government after confiscation. The rate of rent for such goods shall be fixed by the Commissioner in consultation with CPWD or local Revenue or Rent Control authorities;
16. In case the Custodian wants to sublet any of the functions inside the customs area or connected with the customs area, the same should be done with prior approval of the Commissioner of Customs and the custodian shall remain responsible for the omissions and commissions of the said agency;
17. Duration of the appointment shall initially remain for 5 years and subject to the satisfaction of the Commissioner of Customs. Commissioner of Customs shall have the right to terminate the appointment at any time after assigning specific reasons and giving an opportunity for the Custodian to explain his case. The appointment shall be reviewed after every 5 years thereafter”.
The last of the Circulars i.e., DOR Circular No.57/98 dated 4-8-1998 clarifies exactly the procedure to be followed in respect of movement of customs sealed container from ICD/CFS to the Gateway port. Paras 2 and 6 of the said Circular read:
“2. The existing scheme provides that full container load (FCL) cargo can be transferred under Customs /Central Excise seal from ICD/CFS or from the factories, in case of container stuffed inside the factory, to the Gateway Port., Similarly it is proposed that the goods from the factory of manufacture or from the ICD/ CFS can also be transferred in a truck, sealed by the Customs/Central Excise Officer to the Airport for further shipment by air or for further consolidation of such goods in the port into a container. This would also enable carriage of smaller packages belonging to more than one exporter in one truck which would be sealed after stuffing in the ICD/CFS.
xxxx
6. The Custodians would be required to move the goods by road or rail upto Gateway Ports/Airports”.
Thus, the above-said Circular specifically provides that it is the responsibility of the Custodian to transport the Containers from the ICD to Gateway ports. It is stated in the counter-affidavit filed by the 1st respondent that as tobacco is sensitive to multiple handlings, the Commissioner, keeping the interests of the exporters in view has specifically provided for stuffing at factory also under the supervision of the Customs authorities.
21. A perusal of the above three Circulars issued by the Ministry of Finance, clearly establishes that the procedure prescribed under the impugned public notice is in conformity with the instructions issued by the competent authority i.e., Ministry of Finance and the Central Board of Excise and Customs.
22. Mr. S. Ravi, learned Counsel fof the petitioner, placing reliance on the Circular issued by the Board dated 16-5-1994 would maintain that there are no restrictions to transport the export containers stuffed at Exporters’ premises and sealed by the Customs or Central Excise Officers to an Airport, an ICD or CFS for export. The above Circular issued by the Ministry of Finance, apart from Department of Revenue and Central Board of Excise and Customs, does not deal with the movement of goods from ICDs to gateway port. Circular No.57/98 dated 4-8-1998 has laid down the exact procedure for movement of export cargo by Containers/trucks from ICD to Gateway ports/Airports vide clauses therein.
23. Para l(iii) and Para 2 of the Circular dated 16-5-1994 reads:-
“(iii) Movement of stuffed containers from exporters’ premises to ports;.
Certain questions have been raised regarding restrictions being placed on the mode of transport of containers stuffed at exporters’ premises for moving to a port, an airport, an ICD or a CFS for export. It is hereby clarified that as per the existing practice there are no restrictions that such export containers stuffed at exporter’s premises and sealed by Customs or Central Excise Officers should move to a port, an airport, an ICD or a CFS for export by (a) any particular mode of transport or (b) only under the custodianship of a public sector entity.
2. These clarifications may be brought to the notice of the field officers through issue of appropriate standing orders. Further to make the position transparent, the Collectors should issue Trade Notices before 31-5-1994 bringing the aforesaid provisions to the notice of the Trade. Copies of Trade Notices be endorsed to the Board”.
Para l(iii) of the Circular explains the movement of the export goods from one export premises to the Customs area and not from one Customs Area to another Customs Area. This position is made amply clear in paragraph 2 of the Circular. Therefore, it cannot be said that the impugned public notice issued by the Commissioner is one without any authority of law. The Commissioner, in issuing the impugned public notice, is well within his powers to prescribe the procedure to ensure the compliance of the provisions of the Act, the Rules and the Regulations framed thereunder.
24. This takes us to the contention that since the impugned public notice creates monopoly in CONCOR as regards transport of export goods, the petitioner’s right under Article 19(1)(g) of the Constitution to carry on trade and business is violated. Here again, we do not find any merit in the contention. As already pointed out that none of the rights of the petitioner-company have been violated and, therefore, the contention is untenable. The right guaranteed by clause (1)(g) of Article 19 of the Constitution is the natural right to enter into or carry on any trade, profession or. calling which every person, has as the member of a civilised society. It is well established by the decisions in Anand v. State of Orissa, 1995 (2) SCR 919, Shivji v. Union of India, , Mahadeo v. State of Bombay, , Mediator Co. v. State of West Bengal, and Ram Jawaya v. State of Punjab, , that there cannot be any fundamental right to do a thing which can arise only out of a grant or a contract or a licence. Though a citizen has a fundamental right to carry on trade or business, he has no fundamental right to insist upon the Government or the Governmental authorities or any other individual for doing business with him. Any individual, as well as the Government and the Governmental authorities, has got a right to enter into a contract with a particular person or determine the person with whom he or it will deal; and no citizen has a fundamental right to insist upon the Government doing business with him as held by the Supreme Court in Devata Singh v. Chief Justice, . Similarly, there is no substance in the contention of the petitioner that creation of monopoly in favour of CONCOR has resulted in discrimination violating Article 14 postulates. The Ministry of Finance DOR Circular No.128/95, dated 14-12-1995, in fact, lays down that ICS/CFS could be established by the private sector also. It is stated in the counter-affidavit filed by the 2nd respondent that in fact in Chennai itself there are about 8 ICDs/CFSs functioning with some of them being operated by private firms. It is also stated that similar facilities can be created in Guntur also if the petitioner fulfils the requirements. Therefore, no exception can be taken in empowering the 2nd respondent with the transport facilities to safeguard the Export/Import goods and the revenue involved therein. According to the first respondent, the impugned action is a measure for protecting the revenue of the Government of India.
25. The contention taken in paragraph 15 of the writ petition that the 2nd respondent is converted into a CHA without possessing a licence granted under the Act is misconceived contention for the simple reason that the 2nd respondent is appointed as the Custodian. Therefore, its status cannot be relegated to that of a CHA.
26. Above all, the impugned public notice is grounded on a policy decision. Paras (1) to (3) of the impugned public notice read :
(1) The Inland Container Depot (ICD), Reddipalem is functioning at Reddipalem, Guntur, since 1990 and the facility of movement of Import and Export Containers was handled both by Rail and Road movement by CONCOR (Container Corporation of India Limited) as per the Customs Notification No.l/90-Cus, dated 12-9-1990.
(2) In view of the upgradation of the ICD facilities at Reddipalem, Guntur to facilitate Trade and Industry, Liners, CHAs for easy handling of Imports and Exports, and also taking into consideration the increasing demand for containerisation at Guntur, CONCOR requested Customs to permit for setting up a full fledged ICD at Reddipalem, Guntur by providing all modem infrastructure and equipment facilities.
(3) Keeping in view the growing demand and readiness of CONCOR to set up a full fledged ICD at Reddipalem, Guntur, the Commissioner of Customs and Central Excise, Guntur has re-notified the entire area as ICD vide Notification No. 1/2001, Cus, dated 17-1-2001 to handle both Import and Export Cargo and movement of containers both by Rail and Road between ICD, Reddipalem, Guntur to the Gateway Ports and vice versa.
In the counter-affidavit filed by the 1st respondent, it is stated that the impugned action is taken as a measure of protecting the revenue of the Government of India and in the public interest. As the Courts repeatedly held that they will not normally interfere with the policy decision of the Government and Governmental authorities, Court must exercise jurisdiction of judicial review with circumspection. The’wisdom in a policy decision of the Government or statutory authorities, as such, is not justiciable unless such policy decision is capricious, arbitrary, whimsical so as to offend Article 14 of the Constitution or any statutory or constitutional provision. The only thing to be seen by the Court when a policy decision is assailed is whether the policy in question is arbitrary or violative of any mandatory provisions of law. In Tata Iron and Steel Co., Ltd. v. Union of India, , it was held that unless policy decision is inconsistent with constitution or law, Court must exercise jurisdiction with circumspection, particularly where legal issues are intertwined with policy decisiah and technical issues. In Sitaram Co. v. Union of India, , the Apex Court held that the Court does not possess the expertise required to determine the matter, and the determination has been made by experts appointed by the Government. In Sher Singh v. Union of India, , the Court opined that there shall be no judicial review if the policy decision is -neither unfair nor mala fide. InA.M.S.A. Karmachari Sctnth v. State, , the Court has opined that a policy decision shall not be normally questioned in a Court of law and the Court cannot find fault with discrimination based on policy. Keeping these well settled principles in view, it cannot be said that the policy decision taken by the 1st respondent in conferring monopoly on the CONCOR in the interest of the Exporters and in the interest of the revenue and the public interest cannot be said to be capricious or arbitrary or whimsical so as to attract the wrath of postulates of Article 14 of the Constitution. The 1st respondent is an important statutory authority and he should be permitted to exercise discretion vested in him in the matter of discharge of his duties and functions and to use the language of the Apex Court, he should be free to act according to his own light. The Supreme Court in U.P. Financial Corporation v. M/s. Nayer Oxygen and Acefytene Gas Ltd, (1994) 7 SCC 551, has observed:
“However, we cannot lose sight of the fact that the Corporation is an independent autonomous statutory body having its own constitution and rules to abide by and functions and obligations to discharge. As such, in the discharge of its functions, it is free to act according to its own light. The views it forms and the decision it takes are on the basis of the information to its own perspective and calculations. Unless its action is mala fide even a wrong decision taken by it is not open to challenge. It is not for the Courts or a third party to substitute its decision, however, not prudent, commercial or business like, it may be, for the decision of the Corporation. Hence, whatever the wisdom (or the lack of it) of the conduct of the Corporation, the same cannot be assailed for making the Corporation liable.”
27. In the circumstances stated above, we hold that the petitioner-company cannot be said to be an aggrieved person and consequently the writ petition filed by it is not maintainable. We also hold that the petitioner has not made out any case on merits also warranting the Court’s interference.
28. For the foregoing reasons, we do not find any merit in the writ petition and it is accordingly dismissed. However, there shall be no order as to costs.