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2015 (4) TMI 731 - CALCUTTA HIGH COURT

2015 (4) TMI 731 - CALCUTTA HIGH COURT - 2015 (321) E.L.T. 117 (Cal.) - Demages for prolonged detention of goods - Delay in testing of goods - Import of hazardous goods - permission was given by the Indian authorities to the petitioner to re-export the goods - Damages in form of rent and de murrage charges - Held that:- Petitioner did not respond to the letter of the customs to store the goods under Section 49 of the customs Act, 1962. Petitioner did not even deposit the charges of the National .....

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n steps to re-export the same under Rule 17(2) of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. He took no decision 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. - Dec .....

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. 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. Ultimately, the goods were found to be hazardous. However, permission was given by the Indian authorities to the petitioner to re-export the goods. Now, unpaid rent or demurrage charges .....

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by the customs, as the goods were detained for a prolonged period for their fault. Now let me elucidate on the facts. Out of the six containers two arrived in the port of Kolkata on 1st January 2013 and the others by March, 2013. Four containers were shipped from Singapore one from Malaysia and one from Australia. Of the six containers, five were shipped by M/s. Arrow Chem. Pvt. Ltd, Singapore and one by Houra Resources Pvt. Ltd., Australia. The customs took up the first container on 29th Janua .....

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nd February, 2013and removed to the container freight station on 3rd February, 2013. Sampling and assessment to duty were made on 8th March, 2013. In the same manner, the fifth container arrived on 10th February, 2013 and was removed to the container freight station on 11th February, 2013. Sampling and assessment to duty were made on 9th March, 2013 and 25th March, 2013. Lastly, the six container arrived on 15th March, 2013. It was removed to the container freight station on 16th March, 2013. Sa .....

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mportation 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 .....

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is affidavit, by their letter dated 3rd May, 2013 five sealed samples were sent by the Customs authorities in Kolkata together with their test report, to the Central Pollution Control Board to report to them whether the goods were hazardous. The customs recorded in another letter of 7th May, 2013 that the Central Pollution Control Board, Kolkata had refused to accept the samples on the ground that no chemical tests were conducted in their office. This letter was addressed by the Customs to the s .....

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vision of Indian Oil Corporation, Kolkata e-mailed to them that the samples might be taken to Indian Oil s, Haldia refinery laboratory on 27th or 28th May, 2013 for testing. On 27th May, 2013 the Assistant Commissioner of Customs (Appraisal) Gr-1 informed the writ petitioner that the customs had opined that the goods were not furnace oil/fuel oil and that they were to be sent to the Central Pollution Control Board and Indian Oil Corporation (IOCL) for testing. On 7th June, 2013 another lot of go .....

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the goods in a bonded warehouse, under Section 49 of the Customs Act, 1962, the letter dated 27th May, 2013 by the customs to them, clearly suggests that the customs were offering them the option to store the goods under Section 49 in a bonded warehouse. It is also averred 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 .....

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iled 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 100/03 dated 28th November, 2003 read with .....

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e alleged delay by the customs. The claim of the writ petitioner is confined to a very small area, in this writ application. The alleged fuel or furnace oil which had been imported by him had been lying from almost the time of their unloading in Kolkata Port in the container freight stations operated by the eighth and ninth respondents. These freight stations allow a lay time or free time for removal of the goods. Beyond this period rent or demurrage is discharged. The quantity of alleged furnac .....

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. They also want this court to quash the order of the Commissioner of Customs (Port) dated 17th February, 2014 so as to avoid payment of a penalty of ₹ 10 lacs. In other words, according to the writ petitioner, the goods were not tested within reasonable time. Secondly, the test report is erroneous. What actually, the writ petitioner seeks in this writ application is damages in tort from the customs for wrongful detention of their goods. To establish their claim the petitioner had to estab .....

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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 good .....

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rd refused to receive the sample on the ground that it did not have the testing facility. Ultimately, the Central Revenue Control Laboratory tested the goods and arrived at the finding that they were hazardous. Throughout the annexures of the affidavit-in-opposition I find that constant efforts had been made by the customs to get the goods properly tested but they were faced with the obstacle that there were no adequate testing centres for them. I have recounted the correspondence that the custo .....

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this laboratory, they had to be sent to New Delhi to be tested by the Central Revenue Control Laboratory. Thirdly, the petitioner did not offer the services of another testing centre to test the goods so as to rule out that the goods were hazardous. When the writ petitioner found that the imported goods were not being cleared for home consumption by the Indian authorities, he should have immediately taken steps to re-export the same under Rule 17(2) of the Hazardous Waste (Management, Handling a .....

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Collector of Customs, Calcutta &Ors reported in AIR 1972 SC 542 cited by the Ld. Advocate General the customs had detained a consignment of lentil on the ground that these goods were sought to be exported by a Nepalese exporter through the Calcutta port in breach of the Indo Nepal treaty. The customs thought that the lentil were of Indian origin and originally imported into Nepal from India. The India Nepal treaty prohibited export of those goods. The Supreme Court negated both the premises .....

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