Mohammad Rafiq, J. - (1.) THIS writ petition has been filed challenging the order dated 2.1.2008 and 8/10.1.2008. By the first order, the Assistant Commissioner of Customs, Air Cargo Complex, Sanganer, Jaipur in compliance with the order passed by the Central Board of Excise & Customs dated 18.12.2007 directed that precious cargo imported to and exported from Jaipur City would be cleared at the newly created Air Cargo Complex situated at Jaipur Gemstone Exchange, 15 -C, Diggi House, Ram Singh Road, Near Maharani College, Jaipur. It was directed that in case any importer does not require the facility of customs clearance with the new Custodian, he may indicate so in the declaration filed with the department and obtain clearance from Air Cargo Complex, situated at Airport, Jaipur and get the same cleared at airport itself. However, such importer would have to fulfill all the requirements of customs and import control before clearance of goods. Subsequent order dated 8/10.01.2008 contains the procedure which was evolved in the joint meeting of the both the Custodians at Air Cargo Complexes at Jaipur i.e. respondent No. 5 -M/s. Jaipur Gemstone Exchange and the petitioner RAJSICO. While the petitioner was appointed as Custodian of the imported goods by the Commissioner, Customs Department, Jaipur under Section 45(1) of the Customs Act, 1962, the Commissioner in his discretion subsequently by order dated 24.4.2007 also appointed Jaipur Gemstone Exchange as Custodian at Air Cargo Complex, Sanganer, Jaipur for import and export cargo of diamonds, precious and semi -precious stones, pearls, jewellery made of gold or any other precious metal, with or without studding, industrial diamonds (including powders), both natural and synthetic, synthetic stones and such other similar items as may be specified from time to time. Procedure that was evolved by the Customs Department pursuant to deliberations which took place in the meeting jointly held with both the custodians referred to above, has given rise to the cause of grievance and consequently to the present writ petition. Shri R.P. Garg, learned Counsel for the petitioner has argued that the respondent Customs Department has arbitrarily created a monopoly in favour of respondent No. 5 - Jaipur Gemstone Exchange for dealing with precious items. The petitioner was efficiently working as Custodian of entire cargo including the precious items since 1979. There was no occasion therefore for the Customs Department to appoint another Custodian and that too by creating monopoly in its favour in so far as the precious items are concerned. Learned Counsel while referring to declaration submitted by number of importers at Annexure -9 to 33, argued that they have desired their cargo to be cleared only through the petitioner and not through respondent No. 5. Monopoly has been created in favour of respondent No. 5 with a mala fide intention only with a view to depriving the petitioner of his legitimate rights to receive the imported goods at the air cargo complex itself. It is argued that the compulsion for the importers to first take their goods to the warehouse of respondent No. 5 and then get it shifted to the warehouse of petitioner in terms of arrangement made in Clause 5 of the procedure evolved in order dated 8/10.01.08 is wholly arbitrary and unreasonable. It would create enormous amount of inconvenience and would deprive the petitioner of the business.
(2.) SHRI K.K. Sharma, learned Assistant Solicitor General appearing for Union of India and the Customs Department and Shri Alok Sharma appearing for respondent No. 5 Jaipur Gemstone Exchange, another Custodian, have opposed the writ petition. Shri K.K. Sharma, learned Assistant Solicitor General has argued that the joint meeting of both the Custodians was held on 8.1.2008 and as per the deliberations which took place in that meeting, a procedure was evolved according to which it was decided that imported goods shall be first taken to the warehouse of the Custodian respondent No. 5 at the airport itself and segregation of cargo shall take place in their warehouse and thereafter the precious cargo would be handed over to the Custodian Jaipur Gemstone Exchange and cargo other than precious, to the Custodian -RAJSICO, namely the petitioner. Imported Goods Manifesto (I.G.M.) is required to be signed by all the agencies present at the time, i.e. its Carrier -namely the concerned airlines, respective Custodians and Customs Inspector. Importers can file bill of entry with the respondent No. 5 Custodian. In case however any importer does not require clearance facility with the respondent No. 5, he may file a declaration indicating so with the Customs at Air Cargo Complex, Sanganer. Such precious cargo shall be escorted from the warehouse of Jaipur Gemstone to the warehouse of the petitioner RAJSICO in the presence of Inspector of Customs and a note to this effect will be made in the register maintained with the Custodian Jaipur Gemstone Exchange namely the respondent No. 5. Filing of bill of entry for clearance of precious cargo at Airport, Sanganer is thus allowed to be made only after following this procedure. Shri K.K. Sharma clarifies that in fact the apprehension of the petitioner that monopoly has been created in favour of respondent No. 5 is more illusory than real. In spite of the fact that the Commissioner of Customs, Jaipur appointed respondent No. 5 as the Custodian solely for precious cargo vide order dated 24.4.2007, their request for clearance of the precious goods through them only was not accepted as is evident from the letter dated 10.8.2007 (Annexure -4) addressed by Joint Commissioner of Customs to the respondent No. 5. Shri K.K. Sharma further clarified that such of the importers who do not require the clearance facility through respondent No. 5 Custodian, but rather prefers to have it cleared through petitioner -Custodian, may in advance file a declaration saying so with the Customs Department at the Air Cargo Complex itself. The precious cargo which is initially taken to warehouse of respondent No. 5 -Custodian, is then shifted from their warehouse to the warehouse of RAJSICO for which they are not charged anything. It is therefore submitted that argument that a monopoly has been created is wholly unfounded. Shri K.K. Sharma further argued that when the Collector of Customs in exercise of powers conferred under Section . 45(1) of the Customs Act has the power to appoint one Custodian, he can by invoking the same powers appoint another one as well which is what has been done in the present case. It is argued that for the same reason the petitioner also cannot insist upon a monopoly being created in his favour. The Commissioner of Customs decided to appoint respondent No. 5 as the Custodian for precious cargo upon consideration of the practical aspects of the matter but in that also, an exception has been carved out for such of the importers who do not want the clearance facility with the respondent No. 5 - Custodian. It is therefore denied that there was any arbitrariness or mala fide on the part of the customs authorities. He, therefore, prayed that the writ petition be dismissed.
(3.) SHRI Alok Sharma, learned Counsel for the respondent No. 5 has however taken a somewhat different stand than the Customs Department. He has argued that the respondent No. 5 was appointed as Custodian by the Commissioner of Customs solely for handing the precious cargo and having done so, the Customs Department could not thereafter dilute the arrangement. Referring to notification No. 2/2007 dated 24.4.2007, whereby the respondent No. 5 was appointed as Custodian for precious cargo, Shri Alok Sharma argued that for items such as diamonds, precious and semi -precious stones, pearls, jewellery made of gold or any other precious metal, with or without studding, industrial diamonds (including powders), both natural and synthetic, synthetic stones and such other similar items, the respondent No. 5 was purposely appointed as the sole Custodian at the Air Cargo Complex itself. No exception thereafter could be made at the level of Assistant Commissioner by passing any order like the one dated 8/10.1.2007. While reserving his right to question the correctness of this order, Shri Alok Sharma further argued that the Commissioner of Customs was well within his right to device an arrangement by which he decided to have a fresh Custodian solely for precious cargo. Section 45(1) of the Customs Act, 1962 is an enabling power which he can exercise at multiple number of times. Shri Alok Sharma, therefore, submitted that the petition itself is liable to be dismissed because the petitioner being appointee of Customs Department has no locus to challenge the appointment of respondent No. 5. The writ petition be therefore dismissed. I have given my thoughtful consideration to the arguments aforesaid and perused the impugned order.;