1995 (12) TMI 163 - HC - Customs

Summary

Issues Involved
1. Legality of the auction of 28,000 kgs of Balanced Polyester Films.
2. Compliance with Sections 61 and 62 of the Major Ports Trust Act, 1963.
3. Validity of the tender sale procedure.
4. Adequacy of notice to the Petitioners.
5. Allegations of undervaluation of goods.
6. Compliance with Section 45 of the Customs Act.

Detailed Analysis

1. Legality of the Auction
The Petitioners sought a declaration that the auction conducted by B.P.T. on 21-9-1995 was illegal, null, and void, and requested that it be set aside. The goods in question were imported from France and arrived in Bombay in February 1995. Despite efforts to obtain the necessary DEEC book for duty-free clearance, the Petitioners failed to clear the goods, leading to mounting B.P.T. charges. B.P.T. issued final notices on 11-7-1995 and 17-8-1995, warning that the goods would be sold if not cleared. The goods were eventually auctioned on 21-9-1995.

2. Compliance with Sections 61 and 62 of the Major Ports Trust Act, 1963
The Petitioners argued that B.P.T. did not comply with Sections 61 and 62, particularly the requirement to give notice before the sale. B.P.T. countered that they had issued notices on 11-7-1995 and 17-8-1995, and had also published the sale notice in the Official Gazette and newspapers. The Court found that B.P.T. had complied with the statutory requirements, noting that the Petitioners were given sufficient notice and opportunity to clear the goods.

3. Validity of the Tender Sale Procedure
The Petitioners contended that the goods should have been sold by auction rather than tender, as mandated by Sections 61 and 62. B.P.T. argued that a Committee formed in 1984 had recommended the tender sale procedure, which was more expeditious and fetched better prices. The Court acknowledged that the Act generally prefers auction sales but noted that B.P.T. had valid reasons for opting for tender sales due to congestion and space issues. However, the Court suggested that B.P.T. should re-evaluate the tender sale procedure to address concerns of undervaluation and professional bidders.

4. Adequacy of Notice to the Petitioners
The Petitioners claimed they were not adequately informed about the sale despite paying up-to-date B.P.T. charges. B.P.T. maintained that the Petitioners were given clear notices and their Customs House Agent had undertaken to clear the goods by 31-7-1995. The Court found that the Petitioners were adequately notified and had ample opportunity to clear the goods, thus rejecting the claim of inadequate notice.

5. Allegations of Undervaluation of Goods
The Petitioners argued that the goods were sold at an undervalued rate of Rs. 124 per kg, whereas they were worth at least Rs. 200 per kg. The Court stated that it was not possible to examine the issue of undervaluation in writ jurisdiction and suggested that the Petitioners could file a suit against the Auction Purchaser if they believed the goods were undervalued.

6. Compliance with Section 45 of the Customs Act
The Petitioners contended that B.P.T. did not obtain necessary permissions under Section 45 of the Customs Act before the sale. B.P.T. argued that a general circular issued by the Collector of Customs on 6-7-1989 authorized them to dispose of goods by auction/tender. The Court found that B.P.T. had complied with the Customs Act, as evidenced by the circular.

Conclusion
The Court dismissed the Petition, finding no arbitrariness or mala fides on the part of B.P.T. The Court held that B.P.T. had acted in accordance with the law and had given the Petitioners sufficient opportunity to clear the goods. The sale was confirmed as valid, and the Petitioners' claims were rejected. The Court also recommended that B.P.T. re-evaluate the tender sale procedure to address ongoing concerns. The request for a stay of the order was refused, and the issuance of a certified copy was expedited.