TMI Blog2013 (4) TMI 237X X X X Extracts X X X X X X X X Extracts X X X X ..... kil Kureshi, J. (Oral)]. The petitioner, a Company incorporated under the relevant laws of Hong Kong (hereinafter to be referred to as the exporter ) has filed this petition making several prayers. At the time of hearing the petition, however, the counsel for the petitioner pressed only prayer 9(B) of the petition and did not press the remaining prayers. Prayer 9(B) reads as under :- (B) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent Customs to pay to the petitioner an amount of Rs. 25,72,765/- (being compensation towards payment of Containers Detention Charges along with ground rent) along with 18% interest thereon, from the date such payment was made by the petitioner, till the final payment is made. 2. The petition arises with the following factual background. In the year 1998, the petitioner exported 100% Mulberry Raw Silk to its various Indian buyers under 31 different consignments. The goods were shipped from Hong Kong and Singapore. The Indian buyers however, did not take the release of the documents from the bank. The petitioner, therefore ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition in the following manner :- 19. As a result of the discussions aforesaid, this petition must succeed and it is therefore allowed. The impugned orders dated 14th December, 1998 (Annexure H) and cumulatively marked as (Annexure G), dated 16th February, 1999, 17th February, 1999, 1st March, 1999 and 8th March, 1999 of confiscation of the imported goods are all hereby quashed. The respondent authorities are directed to restore the goods seized and illegally confiscated to the petitioner company. It is however made clear that the Custom Authorities are at liberty to make further investigation into the alleged illegal import of the quantity of Raw Silk by the petitioner company and take permissible action in that regard. It is however also made clear that as a result of restoration of the illegally confiscated goods to the petitioner company, the Custom Authorities would consider the prayer of the petitioner company, based on its investigation and inquiry, to either allow the petitioner company to dispose of its goods to other licenced importers in India or to re-ship them, as is permissible in law. Rule is made absolute with no order as to costs. Sd/- (D.M. Dharmadhika ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the present petition and prayed that the customs authorities should be directed to pay an amount of Rs. 25,72,765/- towards the payment of containers detention charges alongwith ground rent with 18% interest thereon from the date when such payments were made till actual reimbursement. 9. Learned counsel Shri Gupta for the petitioner taking us through various documents on record vehemently contended that the respondents had no authority in law to seize the goods or at any rate, order confiscation thereof without any notice to the petitioner exporter. He submitted that the petitioner had made detailed correspondence with the customs authorities requesting the substitution of the import in favour of new buyers in view of the original buyers defaulting and failing to take delivery of the goods by making payment to the banks. The petitioner, in the alternative, had also prayed that the entire consignment be permitted to be re-shipped. The customs authorities gave no reply to such letters and had, at all stages, totally ignored the pleas of the petitioner. 9.1 The counsel further submitted that the order of seizure was illegal and unlawful. In any case, the final order of confiscati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ever, holding a prima facie belief that the import of the goods itself was illegal, initially issued seizure orders in March 1998, in exercise of powers under Section 110 of the Customs Act. These orders were not served on the petitioner exporter. Eventually, without any notice to the petitioner, the customs authorities also passed four separate orders in February/March, 1999 confiscating the goods. Such orders came to be struck down by a Division Bench of this Court by the judgment dated 18-9-2000 [2000 (134) E.L.T. 40 (Guj.)]. In the said decision, the court held that the exporter was the owner of the goods and as owner of the goods, in terms of the provisions contained in Section 124 of the Customs Act, it was entitled to a notice before any order of confiscation could have been passed. The court held that such requirement was mandatory in nature. Eventually, therefore, the court set aside all four orders of confiscation. Consequently the respondents were directed to restore the goods seized and illegally confiscated to the petitioner company. While doing so, however, the Bench kept liberty open to the respondents to make further investigation into the alleged import of the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... od of six months from the initial seizure. In any case, the Division Bench of this court in the judgment dated 18-9-2000 held that the confiscation itself was wholly illegal. Significantly, the seizure orders were never served on the petitioner. In that view of the matter, as held by the Apex Court in the case of Shipping Corporation of India Ltd. v. C.L. Jain Woollen Mills (supra), the customs authority should bear the demurrage charges incurred during detention and confiscation of goods when such detention and confiscation was held illegal. In the said case, the customs authorities had confiscated the goods imported. Such confiscation was quashed and set aside by Delhi High Court upon a petition filed by the importer. The question of bearing the burden of demurrage charges thereupon arose and the Apex Court held that the Delhi High Court having set aside the order of confiscation and levying penalty and such order having reached finality, the liability of the importer to pay demurrage charges ceases and that question cannot be re-opened. The court thereafter proceeded to decide the question, namely if the customs authorities do not release the goods and initiate proceedings and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shipment of consignment and several other connected issues, the customs authorities even after order of seizure, proceeded to pass the order of confiscation without any notice to the present petitioner. Such notice was held mandatory under Section 124 of the Customs Act by this court in the judgment dated 18-9-2000. The entire action of confiscation was declared illegal. Even while doing so, the authorities were given liberty to make further inquiry or investigation with respect to the alleged improper import of the goods. No further inquiry was carried out. 18. In the facts and circumstances of the case, looking to the conduct of the authorities and particularly in view of the order of this court declaring the confiscation illegal, and such judgment of this court having attained finality, the customs authorities cannot escape the liability to bear the burden of demurrage charges for such seized and ultimately confiscated goods which would include container charges and ground rent. We may note that the seizure orders pertained to the containers also. 19. However, with respect to the amount actually paid by the petitioner for such demurrage towards container and ground rent char ..... X X X X Extracts X X X X X X X X Extracts X X X X
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