TMI Blog2021 (9) TMI 297X X X X Extracts X X X X X X X X Extracts X X X X ..... states that the licence stands in the name of the importer and thus the conditions that attach to the licence would have to be satisfied by any party wishing to deal with the goods. This is a matter to be examined by the authorities, bearing in mind the position that, all that is sought to be done by the foreign exporter/petitioner, is re-export of the goods. Conditions as may be specific to the importer, such as domestic manufacture, would, evidently, not be applicable to the petitioner. Re-export, once permitted, will be upon payment of applicable charges and duties, and in accordance with law - Petition disposed off. - W.P. No.11441 of 2020 And WMP Nos.13955 and 13956 of 2020 - - - Dated:- 9-7-2021 - Honourable Dr. Justice Anita Sumanth For the Petitioner : Mr.J.Sivanandaraj Mr.S.Kaushik Rramaswamy And Ms.Ridhhima Shhama For the Respondents : Mr.Rabu Manohar, SCGPC R1 Mr.A.P.Srinivas Senior Standing Counsel - R2 Mr.B.Dharmaraj R3 Mr.Ajay K.Jain for Mr.Raghav Rajeev Menon - R4 ORDER The petitioner is a company incorporated under the laws of United Kingdom and engaged in trading in sugar and other services. 2. The petitioner entered into a contract ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arehouses. . 6. At this juncture, I may note that memos were filed even earlier by both R3 and R4 expressing their no-objection to the release, though stipulating certain conditions and disclaimers. The parties were directed to sort out the terms of release inter se and the memos filed subsequent to the negotiation, read as follows: Memo by R3: 2. In compliance with the Order of the Hon'ble Court dated 07.07.2021 made in W.P.No.11441 of 2020, the Liquidator is filing this memo according his No Objection for removal of 8453 MT Sugar by the petitioner, stored in Kollumangudi Godown, of the Company in Liquidation, at the risk and cost of Petitioner. Memo filed by R4: 2. In this regard, this Respondent submits that he has no-objection to the afore-mentioned prayer sought by the Petitioner in the present writ petition with respect to the re-export of sugar amounting to 3445.26 MT (out of 11,899.21 MT) belonging to M/s.Thiru Arooran Sugars Limited located in the warehouses of M/s.Shree Ambika Sugars Limited at Pennadum and Kottur subject to actual determination/quantification by the authorized representative on behalf of the 3rd respondent i.e., the Liquidat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xporter was entitled to have the said goods re-exported on payment of requisite duty for exportation thereof. The importation of the said goods was made against Advance Licence which was validly subsisting at the time when the said goods arrived at the Port of Bombay. Merely because the said licence was subsequently cancelled for lapses on the part of the 2nd respondent, it cannot be said that the importation of the said four consignments was without a valid and subsisting licence. In the circumstances, provisions of Section 111 (d) of the said Act under which the order was passed by the 2nd appellant confiscating the said goods were not attracted and the said order was rightly quashed by the learned Judge in the said writ petition. The re-export of the goods covered by the said four consignments has to be permitted subject, however, to payment or requisite export duty payable in respect thereof. The 1st respondent is entitled to detention certificate in respect of the goods covered by the said four consignments for the period the said goods were wrongfully detained rendering the 1st respondent liable to pay demurrage to Bombay Port Trust. 13. While dismissing the appeal f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms. This condition, however, does not apply to STC, MMTC and other similar institutions entrusted with canalisation of imports. It also does not apply to certain eligible export houses, trading houses and public sector agencies mentioned in the second proviso. Condition (iii) says that the goods for which the import licence is granted shall be new goods unless otherwise mentioned in the licence. Now coming back to Condition (ii), the question is what does it mean and what is the object underlying it when it says that the imported goods shall be the property of the licensee from the time of import till they are cleared through customs. It is necessary to notice the language of the sub-clause. It says it shall be deemed to be a condition of every such licence that-the goods for the import of which a licence is granted shall be the property of the licensee at the time of import and thereafter upto the time of clearance through Customs. The Rule-making authority (Central Government), which issued the order, must be presumed to be aware of the fact that in many cases, the importer is not the owner of the goods imported at the time of their import and that he becomes their owner onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuations where for one or other reason, an importer chooses or fails to pay for and take delivery of the imported goods. He just abandons them. (We may reiterate that we are speaking of a case where the import is not contrary to law). It is only with such a situation that we are concerned in this case and our decision is also confined only to such a situation. Condition (ii) in sub-clause (3) of Clause 5, in our opinion, does not operate to deprive the exporter of his title to said goods in such situation. 15. On the question of title, the Supreme Court holds unambiguously that the definition of the term 'importer' and other statutory definitions would hardly be relevant to decide the issue. They conclude by saying that, in a situation where the goods imported into India by an exporter outside the Country are unavailable to him for various reasons including abandoning of the consignment by the Indian importer, or as in the present case, the importers not being in a position to take possession and claim ownership of the goods, it would place the foreign exporter in an unenviable position. Having lost possession of the goods, he would also not be in a position to enforce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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