TMI Blog2015 (4) TMI 731X X X X Extracts X X X X X X X X Extracts X X X X ..... ecision to this effect before the hearing of the first writ before Mr. Justice Tandon. - Here the findings can only be prima facie. In this mesh of facts the court cannot and should not come to any final finding regarding fault or the nature of the goods. So, on appraisal of the facts, prima facie the writ petitioner is not entitled to any remedy. - Decided against assessee. - WP NO. 818 OF 2014 - - - Dated:- 20-4-2015 - I.P. Mukerji J. For the Appellant :- Mr. Jayanta Mitra, Sr.Advocate Mr. A.K.Banerjee, Mr. Sk. Faridullah For the Respondent : Mr. Soumya Mazumdar Judgment The writ petitioner imported a large quantity of a substance alleged to be furnace oil. This is also known as fuel oil He did so between January and March, 2013 in six containers, from Singapore, Malaysia and Australia. The first and the second arrived on 1st January, 2013. The containers were unloaded and removed to a container freight station the very next day, 2nd January, 2013. Other containers followed. The goods were detained by the customs for a long period of time on the suspicion that they were hazardous. Under our law hazardous goods cannot be imported into the country. Ultima ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 13th March, 2013 for home clearance of the goods. The alleged furnace oil was not released to the petitioner, although he wanted provisional release thereof. The respondents subjected the goods to tests on receipt of information that some unscrupulous importers were importing hazardous waste oil, importation of which was absolutely prohibited. According to the affidavit-in-opposition affirmed on behalf of the customs on 29th October, 2014 the samples which were drawn from the goods were sent to the Customs House laboratory for testing. The test report dated 31st January, 2013 with reference to a part of the goods stated that the sample did not satisfy the requirement of furnace oil/fuel oil as per IS1593-1982. The Customs House laboratory recommended that the sample be sent to the Central Pollution Control Board, Kolkata, for testing. Tests were carried out with regard to the rest of the goods and the report was the same. The main reason for coming to this opinion by the customs laboratory was that in the sample the mineral hydrocarbon oil was less than 70% by weight. Hence, it did not appear that the imported goods were furnace oil/mineral oil. Successive consignments o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred in the affidavit that the petitioner was given the option of getting the goods tested at the National Test House but since he did not deposit the fees the samples were forwarded to the Central Revenue Control Laboratory, New Delhi. The letter of the customs dated 6th November, 2013 records that the duplicate samples were being sent to the Central Revenue Control Laboratory, New Delhi for their opinion as to whether the goods were hazardous or not. On 11th December, 2013 this agency reported that the sample did not meet the requirement for furnace oil/fuel oil and fell under the category of hazardous waste oil . Permission was granted to the writ petitioner by this Court on 18th December, 2013 in a writ application filed by him (WP 836 of 2013) to re-export the goods. The court did not make any observation as to the liability to pay the rent or demurrage charges of the container freight station owners. In obedience to the said order dated 18th December, 2013 passed by Mr. Justice Tandon the Commissioner of Customs (Port) made an adjudication on 17th February, 2014 allowing re-export of the goods by the payment of fine of ₹ 10 lakh in terms of customs circular 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ar cut finding that the sample which was sent to them for testing did not meet the requirement of furnace oil/fuel oil and that the goods could be classified as hazardous. Every importer, every trader and every manufacturer owes this duty to the nation of not bringing from outside, to this country, goods which are hazardous. Or in other words, substances which are injurious to human life. This report is uncontradicted. Although, it is contended on behalf of the writ petitioner that the exporter s document certified that the goods were not hazardous, he has been unable to bring any report from any test house or agency in India to certify that the goods are non-hazardous. It also appears from the records that this kind of hazardous goods are rarely brought into this country. The routine testing centres like the ones available with the customs or Indian Oil Corporation, Haldia do not even have the facilities to test such goods. The testing department of the customs expressed doubt whether the goods were non- hazardous, after having declared that they did not fit into the description of furnace oil or fuel oil. The Central Pollution Control Board refused to receive the sample on ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ty prohibited export of those goods. The Supreme Court negated both the premises of the customs holding that neither was it established that the goods were of Indian Origin nor was there any bar in the India Nepal treaty to the export of goods imported into Nepal from India. It opined that the customs were fully responsible for the sizeable demurrage charges incurred. Nevertheless it refused to pass an order upon the customs to pay the demurrage. First of all there is no direction by the Supreme Court, to the customs to pay the demurrage charges, as the Ld. Advocate General argued. The Court left it to the good offices of customs to pay the demurrage. Secondly, there was a concrete finding that the customs were at fault. Recent decisions of the Supreme Court have told us that a writ court is entitled even to decide disputed questions of fact if those facts can be easily decided on affidavits. Here the findings can only be prima facie. In this mesh of facts the court cannot and should not come to any final finding regarding fault or the nature of the goods. So, on appraisal of the facts, prima facie the writ petitioner is not entitled to any remedy. For those reasons the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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