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TMI Blog2023 (8) TMI 756X X X X Extracts X X X X X X X X Extracts X X X X ..... about the said vessel having been chartered to perform the carriage of the designated cargo. Accordingly, the cargo was sent to Kolkata. On or about May 24, 2023, the respondent no. 10, the shipping agent filed 'Import General Manifest' (IGM) and Cargo Declaration with the Kolkata Customs in anticipation of the arrival of the vessel, in compliance of Section 30 of the Customs Act, 1962. 2. The respective buyers, that is, respondent nos. 7, 8 and 9 had also filed their Bills of Entry as per the provisions and regulations of the Customs Act with respect to the above IGM, to complete the requirements for import of the cargo with the Customs Authorities between May 24 and May 30, 2023. 3. However, on June 6, 2023 and after the vessel had already carried the cargo safely up to the Sandheads of the Haldia Dock Complex on June 5, the broker M/s. Trimurti Group sent an email message to the petitioner, 2023, informing that they would not be able to sell the cargo and raised a quality dispute. 4. Again, on June 7, 2023, the said broker, on behalf of respondent no. 7, sent another email to the petitioner, repeating similar allegations. On June 17, 2023, the broker intimated the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontemplation of Section 17 of the Customs Act, the Authorities can test the goods sought to be imported. 10. It is argued that, under Section 23(2) of the said Act, the owner of the imported goods may relinquish title at any time before an order of clearance for home consumption is granted. However, the proviso thereto carves out an exception if an offence appears to have been committed under the Customs Act or any other law. In the present case, it is argued, there is an apprehension of the quality of the goods sought to be imported by the petitioner being inferior and in violation of the Food Safety and Standards Act, 2006 as well as The Plant Quarantine (Regulations of Import into India) Order, 2003. 11. Learned counsel for the Customs Authorities places reliance on Section 46(4A), Clause (c) to argue that an importer presenting a bill of entry shall ensure compliance with restrictions/prohibitions under any law for the time being in force. 12. Learned counsel also places reliance on Sections 111 and 112 of the Customs Act, which provide for confiscation of improperly imported goods and penalty for improper importation of goods. 13. Under Section 141 of the said Act, it is a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 46 is for home consumption or warehousing. 22. The entire ambit of Section 46 is in such context. The Customs Authorities place reliance on sub-section (4A) of Section 46, in particular sub-clause (c) thereof. As per the said provision, the importer who presents a bill of entry shall ensure compliance with the restriction/prohibition, if any, relating to the goods under the Customs Act or under any law for the time being in force. 23. Notably, the Bill of entry is presented at the behest of the importers. In the present case, the petitioner has annexed to the writ petition 'no objections' issued by all the three importers, who filed the Bills of entry. In each of such no objections, annexed between pages 122 and 124 of the writ petition, the respective proposed importers clarify that they are unable to take delivery of the subject cargo due to unforeseen circumstances. As such, if the shipper wants to sell the cargo of the subject BL and Line numbers to any other party, they have no objection to the same. Hence, the importers themselves are agreeable to cancel the Bills of exchange. 24. Thus, the refusal of the Customs Authorities to grant permission to the petitioner on the g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imported, which rules out the confiscation or imposition of penalty on such goods. Even in their refusal, the respondent-authorities do not utter any whisper in that regard. 31. In any event, an adjudication procedure in case of violation of law has been provided in Section 122A of the Customs Act, under which the adjudicating authority shall, in any proceeding under the concerned chapter of the Act, give an opportunity of hearing to a party if the parties so desires. No such process having been initiated in the present case, the reliance on the said Sections is entirely out of place and frivolous. 32. Under Section 149 of the Act, the proper officer may, in his discretion, authorize any document after it has been presented in the customs house to be amended. No amendment of a Bill of entry or shipping bill or bill of export shall be so authorized to be amended after the imported goods have been cleared for home consumption or deposit in a warehouse under the proviso to the said Section. Since there is no clearance in the present case for home consumption or deposit in warehouse, reliance on the said provision by the Customs Authorities is also misplaced. 33. As discussed above ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rhoeven vs. Union of India and others, reported at (2016) 6 SCC 456 for a similar proposition that Article 21 of the Constitution benefits all persons in India, including non-citizens. In view of such proposition being accepted and well-settled, the same need not be deliberated upon further. 40. In Kiran Spinning Mills vs. Collector of Customs, reported at (2000) 10 SCC 228, the Supreme Court observed that the import would be completed only when the goods are to cross Customs barriers and that is the time when the import duty has to be paid. 41. In the present case, in any event, the Customs officials have not claimed any import duty from the petitioner till date. The ground of refusal was mere pendency of certain Bills of entry which have been waived by the importers themselves, by way of their no objections as discussed above. 42. Here, a public notice, bearing no. 06/2013 dated November 7, 2013 issued by the Government of India, Office of the Commissioner of Customs, has been cited by the respondents. Clause 29 thereof speaks about short shipment, shut out, cancellation and back to town permission. Clause 29.1 stipulates that AC/DC (LCS) will give permission for issuance of s ..... X X X X Extracts X X X X X X X X Extracts X X X X
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