9911796707
TMI Blog2023 (12) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India, as this Hon'ble Court may deem fit, calling for the records of the case pertaining to the Petitioner case and after going into the legality and validity direct the Respondent No. 2 to issue appropriate order and/or direction and/or detention waiver certificate to the Respondent No. 3; (c) That, in the facts and circumstances of the present case, this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other writ, order or direction under Article 226 of the Constitution of India, as this Hon'ble Court may deem fit, calling for the records of the case pertaining to the Petitioner case and after going into the legality and validity direct the Respondent No. 2 to reimburse/refund the detention charges amounting to Rs. 46,96,695/- paid by the petitioner to Respondent No. 3 forthwith, along with interest thereon @ 18% p.a.; 3. Narrative of Events - (i) The petitioner is engaged in the business of importing agrochemicals and selling insecticides in India. (ii) On 19th/20th De ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xport incentives and local price from supplier without incentives. The petitioner further requested respondent No. 2 to clear the goods against PD bond provisionally to avoid extreme detention and demurrage, and considering the fact that the insecticide was required for production of pesticides for paddy season. (ix) The petitioner filed a revised Bill of Entry No. 2773198 dated 15th February 2021 for provisional release of the goods. (x) On 19th February 2021 (sic 19th February 2020), the Assistant Commissioner of Customs addressed a letter to the Joint Additional Commissioner of Customs, Nhava Sheva, giving no objection certificate for release of the goods on execution of a bond as per paragraph 2.1 of CBIC Circular No. 35/2017. The said letter records that the estimated differential duty of the seized goods is Rs. 3,59,789/-. The said letter also records that the petitioner requested for provisional release of these goods vide letter dated 5th February 2021. (xi) The petitioner has annexed to the petition various e-mail correspondence with respondent No. 3 with respect to detention charges. (xii) On 8th July 2021, the petitioner requested respondent No. 2 for waiver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Transhipment Regulations, 2018, the entries in the bill of entries are not found to be correct, and therefore, they are justified in imposing the detention charges and in not issuing the detention waiver certificate. Submissions of Respondent No. 3 8. The counsel for respondent No. 3 submitted that there is no privity of contract between the petitioner and respondent No. 3, therefore, no relief can be granted against respondent No. 3. Respondent No. 3 further stated that they were not responsible for detention and therefore, cannot be made to suffer for no fault on their part. The learned counsel further relied on Section 49 of the Customs Act and contended that the petitioner should have applied for de-stuffing of the goods in public warehouse to mitigate the loss. Respondent No. 3, therefore, submitted that no order be passed against them. Analysis and Conclusion 9. The only issue which falls for our consideration is whether in the facts of the present case, Respondent No. 2 was justified in not issuing detention waiver certificate ? 10. The procedure for issue of "Detention Certificate" is notified in Public Notice No. 111 of 1985 dated 29.07.1985 of the Bombay Custom H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 12. At the outset, we wish to state that we are not adjudicating any dispute between the petitioner and respondent No. 3 nor has the petitioner prayed for any relief against respondent No. 3 in the present petition. 13. The learned counsel for respondent Nos. 1 & 2 has relied upon Regulation 10(1)(l) of the Sea Cargo Manifest and Transhipment Regulations, 2018, to deny the issuance of detention waiver certificate. The said Regulation reads as under :- "Regulation 10. Responsibilities of the authorised carrier under these regulations - (1) An authorised carrier shall - (a) to (k) ...... (l) not demand any container detention charges for the containers laden with the goods detained by customs for purpose of verifying the entries made under Section 46 or Section 50 of the Act, if the entries are found to be correct." 14. The contention of respondent Nos. 1 & 2 is that on account of mis-declaration of value of goods, the entries found in the bill of entry are not correct, and therefore, the waiver certificate could not be issued. In our view, this contention is to be rejected. The petitioner vide letter dated 15th February 2021, explained the difference between the price ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e letters. Respondent No. 2 at the most in exercise of his public duty ought to have replied to these letters giving reason as to why the request made for waiver certificate could not be acceded to. The reason for the first time is appearing in the reply affidavit to the present petition. Such a course of action cannot be accepted moreso considering the norms of ease of doing business. 17. In connection with detention issues, it is important to note the Circular No.84 dated 25th July 1995 which reads thus : - "Circular No.84/95 dated 25/7/95 F.No. 450/61/93-Cus.. IV Government of India Ministry of Finance, Department of Revenue Central Board of Excise & Customs, New Delhi Subject: Customs detention of imported cargo at ports - Instruction regarding I am directed to say that the matter of long detention of cargo including containerised cargo at various ports by the Customs authorities leading to port congestion as well as hold up of containers has been represented at various forums. This issue has also come up for discussion in the last Scope Shipping meeting recently held in Bangalore. 2. The matter has been examined by the Board and it is observed that at ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 5th November 1998 and paragraph 5 of the said Circular reads thus : - Circular No. 83/98-Customs dated 5/11/1998 "5. In case the goods are required to be detained for detailed examination, investigations, etc. the goods should be destuffed from the container and stored in any ware houses. The containers should be released so that the shipping agents can fulfil their commitment of re-exporting the container within six months of their import." 19. Instruction No. 20/2021 dated 10th September 2021 issued by the Central Board of Indirect Taxes and Customs also reiterates what is stated above. Relevant paragraph 2.2 of the said instruction reads as under :- Instruction No. 20/2021-Customs "2.2. Field formations follow the spirit of para 5 of Board Circular 83/98-Customs dated 5.11.1998 and para 3 of Board Circular No.84/95-Cus dated 25.07.1995 thereby taking proactive steps such that containers housing import cargo that is under enquiry are expeditiously released. For this, provision already exists that whenever it becomes necessary to detain the imported cargo, pending completion of enquiry/investigation, such cargo should be removed to a customs warehouse in terms of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that the Port Trust is entitled to charge demurrage charges in the light of the provisions of Major Port Trust Act which is referred hereinabove. The Supreme Court observed that the provisions of the Major Port Trust Act under which the claim was made by the Port Trust is different than the provisions of the Customs Act and hence the claim made by Mumbai Port Trust was justified. The Supreme Court, after analyzing the Customs Act and the Major Port Trust Act, upheld the contention of the Port Trust Authorities to levy demurrage charges on the importers. In the proceedings before us, the provisions of the Major Port Trust Act are not invoked and since this decision does not deal with the Custom Regulation which is posed for our consideration and which we have analyzed hereinabove, the said decision also would not be applicable to the facts of the present case. 24. The Petition is accordingly disposed of by the following order :- (i) Respondent Nos. 1 & 2 to issue detention waiver certificate with respect to Bill of Entry No. 2773198 dated 15th February 2021 (old 9964993 dated 15th December 2020) within a period of four weeks from today; (ii) We are not adjudicating any disp ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
