TMI Blog2017 (8) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... the imposition of fine or penalty. The confiscation of goods having not been challenged by the Petitioner, nonimposition of penalty/fine is clearly erroneous and unsustainable. It is the admitted position that the consignment consisted of prohibited goods and the same having arrived in Delhi and having been confiscated, the Petitioner being the owner of the goods, has to take the responsibility for the same. Mere non-imposition of penalty/fine, which is the mandate under Section 125 of the CA in case of confiscated goods, cannot automatically result in letting the Petitioner go scot-free - In the present case, the arrival of the consignment in Delhi, which contains prohibited goods, is clearly not innocent and is contrary to law. The goods being prohibited goods and having been confiscated, even as per Trip Communication, the Petitioner would not be entitled to waiver of demurrage/rent charges. The Petitioner, having accepted the finding that the consignment contained prohibited goods and was liable for confiscation, cannot claim waiver of demurrage/rent charges to the detriment of CELEBI, which was not even heard by the ACC (Imports). The consignment having contained `prohi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to be the owner of the consignment, as the importer Visha Enterprises was not aware of the consignment as it had not placed an order for the said goods. The Petitioner took the stand that the consignment was sent to India by mistake. On 29th July/1st August, 2016 the DRI requested the Principal Commissioner of Customs (Import) to consider the Petitioner's plea for re-export and also ascertain the question of the importability of the said goods. The Petitioner, on 2nd August, 2016, again sought a NOC from the DRI on the ground that re-export was not being permitted without a NOC from the DRI. The Petitioner further claimed that since the imported items were health products having limited shelf life and being perishable in nature, the request may be considered at the earliest. The DRI then informed the Petitioner that the case of the Petitioner had been referred to the Principal Commissioner of Customs (Import). 6. Since no permission for re-export was granted by the authorities, the Petitioner filed W.P.(C) No.7309/2016 before this Court. In the said petition, M/s. Visha Enterprises was also impleaded vide order dated 19th August, 2016. Thereafter, the said writ petition wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with law. Mr. Amit Bansal, Advocate appearing on advance notice submits that detention certificate has since been issued on 25.03.2017 and that the same has been despatched to the Petitioner through his counsel. A copy of the said detention certificate has been shown to the Court. Since it is unreadable, the same is not taken on the record. In view of the statement, the third and fourth respondents shall take necessary consequential action giving due effect to the re-export order having regard to the detention certificate expeditiously. The writ petition is disposed of in the above terms. Order dasti. 9. Almost simultaneously, the ACC (Imports) on 27th March, 2017 made a request to CELEBI to consider the waiver of detention / demurrage charges. Despite receiving the said letter, the Respondent CELEBI did not waive the demurrage charges, which resulted in the Petitioner filing the present writ petition seeking the following relief: (a) Issue a writ, order or directions in the nature of Mandamus to the Respondent No.3 4 to allow the re-export of the goods imported against Airway Bill No.607-67933913 dated 23.04.2016 without charging any demurrage/ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t having been granted, the Respondent ought to be directed to waive the demurrage / rent charges. Respondents' Submissions 13. The Respondent Nos.1 2 are the Principal Commissioner of Customs (Imports) and the Deputy Commissioner of Customs (Import Shed). The Delhi International Airport Private Limited is the Respondent No.3 and Celebi Delhi Cargo Terminal Management India Pvt. Ltd. is the Respondent No.4. 14. Mr. Rakesh Tiku, learned Senior advocate appearing on behalf of CELEBI submits that the reliance by the Petitioner on the order passed by the ACC (Import) is misplaced. Mr. Tiku submits that CELEBI being the party affected in this case ought to have been heard, inasmuch as, if waiver of demurrage charge/ground rent is granted, it would be put to a loss. As per Mr. Tiku, since CELEBI was not heard prior to the passing of the order dated 13th January, 2017, the same was not binding upon CELEBI. 15. Mr. Tiku further relied upon Section 125 of the CA to argue that once a consignment is confiscated, the authorities did not have the power to waive fine or penalty and under the said provision, fine had to be mandatorily imposed in lieu of any confiscation. Mr. Tiku ve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a bona fide mistake or that the goods were meant for Singapore and were wrongly brought to India. All the documents on record clearly reveal that there was a proper detailed invoice for the health products, which was raised on Visha Enterprises and was meant to be cleared by Visha Enterprises. 21. It is not in dispute that the consignment consisted of the health products, which at the relevant time were prohibited goods as per Section 22 of the FSSA which reads as under: Save as otherwise provided under this Act and Regulations made thereunder, no person shall manufacture, distribute, sell or import any novel food, genetically modified articles of food, irradiated food, organic foods, foods for special dietary uses, functional foods, neutraceuticals, health supplements, proprietary foods and such other articles of food which the Central Government may notify in this behalf. Explanation. For the purposes of this section, (1) foods for special dietary uses or functional foods or nutraceuticals or health supplements means: (a) foods which are specially processed or formulated to satisfy particular dietary requirements which exist because of a particular p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t have been produced in accordance with specified organic production standards; (4) proprietary and novel food means an article of food for which standards have not been specified but is not unsafe: Provided that such food does not contain any of the foods and ingredients prohibited under this Act and the regulations made thereunder . 22. Under Section 111 (d) of the CA, goods which are prohibited under any law for the time being in force, are liable to be confiscated. Such goods fall in the category of `prohibited goods' under Section 2 (33) of the CA and any import or attempt to import the same, entails confiscation. The ACC (Imports), having confiscated the goods, could not have permitted the reexport of the same, as per law, without the imposition of fine or penalty. The confiscation of goods having not been challenged by the Petitioner, nonimposition of penalty/fine is clearly erroneous and unsustainable. It is the admitted position that the consignment consisted of prohibited goods and the same having arrived in Delhi and having been confiscated, the Petitioner being the owner of the goods, has to take the responsibility for the same. 23. The submission th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioner is entitled to waiver of demurrage/rent charges. This issue is no longer res integra. In Trip Communication (supra), this Court has discussed the law on the subject after taking into account the various prevalent policies etc. The Court has held as under: .. 44. The policy makes a distinction between the cases where the importer is innocent but his imported goods are seized and detained pending an enquiry and adjudication and the case where the importers have indulged in misdeclaration, misdescription, undervaluation or concealment and fine, penalty, personal penalty and/or warning is imposed by the customs authorities. Importers who are innocent cannot be equated with the importers who violate the law and be given the same treatment. The AAI policy makes a distinction between the two and in our view rightly so. ............ 47. In cases where the importer is found innocent and there is no imposition of any fine, penalty, personal penalty and/or warning by the customs authorities, the Policy for Waiver would be applicable and the importer would be entitled to be considered for its benefit provided a certificate entitling him to be so considered i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith law and subject to payment of such dues or other charges as may be leviable in that behalf . In Grand Slam (supra) it was unequivocally held that that the custodian of the goods would be entitled to charge demurrage for the goods in its custody. 29. In fact, Grand Slam (supra) has been followed subsequently in Trustees of Port of Madra v. Nagavedu Lungi Co., (1995) 3 SCC 730 wherein the Supreme Court held that the liability to pay demurrage charges or incidental charges as per Grand Slam (supra) applies equally to exporters/consigners of goods. 29A. In view of the above, this Court concludes that the consignment having contained `prohibited goods', which were confiscated in terms of Section 111 (d) of the CA, the Petitioner is not entitled for re-export of the same without payment of demurrage/ground rent. 30. Accordingly, it is directed as under: (a) Respondent no. 4 - CELEBI is directed to communicate to the Petitioner the amount of demurrage/ground rent positively within a week. (b) Upon payment of the same by the Petitioner, the Petitioner be permitted to re-export the goods imported against Airway Bill No.607-67933913 dated 23rd April, 2016. (c) Upo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
