TMI Blog2018 (7) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... in invoking Section 48 of the Act. The facts disclose that the petitioner had imported goods in 96 containers of which, 41 have been cleared at different points of time for which, duty and all other charges have been paid by the petitioner. Therefore, it may not be a case where there is total lack of bona-fide on the part of the petitioner. It is no doubt true that one and half years had lapsed and the containers were lying in the Container Freight Station. Consequently, the second respondent lost other business opportunities. However, if the petitioner chooses to clear the cargo upon permission being granted by the first respondent, it goes without saying that the petitioner should not only pay the customs duty and other levies payable under the Act, but also is bound to clear the entire dues to the second respondent, which is all inclusive. This writ petition is disposed of by permitting the petitioner to approach the first respondent Department within a period of one week from the date of receipt of a copy of this order and request to grant permission to pay the highest bid amount as realised in the auction. - W.P.No.5626 of 2018 and W.M.P.No.6954 of 2018 - - - Dated:- 6- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for auction without issuing any notice to the petitioner / importer. 5.By referring to Section 48 of the Customs Act, 1962 (hereinafter referred to as the Act ), it is submitted that proper notice has to be issued to the petitioner, which procedure was not followed and therefore, the auction, which was conducted, stands vitiated and thus, prays for allowing the writ petition by permitting the petitioner to clear the consignments and they also expressed their readiness and willingness to pay all the charges payable to the second respondent. 6.It is further submitted that the auction is yet to be confirmed in favour of a third party and even if customs clearance has been granted, the same can be withdrawn at any time, especially when the respondents have failed to follow the mandatory procedure under Section 48 of the Act. In support of such contention, reliance was placed on the decision of the High Court of Delhi in the case of Ajanta Arts Company vs. Union of India and Others reported in 2011 STPL 2522 Delhi. 7.The first respondent has filed a counter affidavit inter alia stating that Chapter 20 of the Customs Manual, 2014 deals with the procedure for disposal of unclear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e auction proceedings were over and a third-party interest had been created. 12.Further, the Board's Circular No.50/2005-Cus states that customs shall not withdraw any consignment at the last moment from the auction / tender except with the written approval of the Commissioner. Since the auction has been concluded and third-party interest has been accrued, the same cannot be set aside, more so when the third party is not a party to this writ petition. Further, it is submitted that the reserve price of the five lots is ₹ 14,34,000/-, which fetched the highest bid amount of ₹ 49,93,000/- and if the bid is awarded to the highest bidder, the expected customs duty is ₹ 7,09,001/-. 13.Further, in the counter affidavit, it has been stated that the Customs does not have any objection in clearance of the five lots by the petitioner subject to the payment of all dues of customs duty and other charges and though the auction is over, the power to handover the subject cargo either to the highest bidder or to the actual importer is vested with the Customs Authorities, since the cargo is still under the Customs Custody, as an order of status quo had been granted in thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of ₹ 35,000/- per container and would state that after negotiation with the second respondent s office at Delhi, they agreed to release the cargo after accepting the payment of ₹ 12,60,000/- (Rs.35,000/- * 36). Further, it is submitted that even if auction has been conducted, the first respondent has discretion to withdraw the same upon the petitioner paying duty and all charges. 19.Heard the learned counsels for the parties and carefully perused the materials placed on record including the counter affidavit filed by the respondents and the reply affidavit to the counter affidavit filed by the writ petitioner. 20.The sheet anchor of the argument of the learned Senior Counsel for the petitioner is by referring to Section 48 of the Act. The said provision deals with procedure in case of goods not cleared to warehoused or transhipped within 30 days after unloading. If the goods are not cleared within the said time period, the title to the imported goods gets relinquished and such goods, may after notice to the importer and with the permission of the officer, be sold by the petitioner having custody thereof. 21.It is not in dispute that the goods were not cleared ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to leave the Container Freight Station. This permission will be granted only after the payment of the customs duty and other levies and charges. Thus, the right of the Department stands preserved and the auction, which was conducted, is always subject to the power exercisable by the Customs Department and therefore, I do not agree with the stand taken by the second respondent that a finality has attained to the proceedings. Probably, the second respondent, as a custodian of the cargo and a person, who had been the cause for bringing the cargo for auction, may be justified in taking a stand that so far as they are concerned, the matter has attained finality, since the highest bidder has offered a sum of ₹ 49,93,000/-. In any event, the auction conducted is subject to orders that may be passed by the first respondent Department. 26.In the counter affidavit filed on behalf of the first respondent, the Assistant Commissioner of Customs (Legal-Exports), a fair stand has been taken by stating that though the auction is over, the power to handover the subject cargo either to the highest bidder or to the actual importer is vested with the Customs Authorities, since the cargo is ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
