9911796707
TMI Blog2025 (5) TMI 173X X X X Extracts X X X X X X X X Extracts X X X X ..... Offices at Ludhiana, Chandigarh Delhi & Kolkata and is engaged in the business of Import of "Food Items" at various Sea ports including "Mumbai" as well as "Mundra" and "Dry Ports at "New Delhi" and "Ludhiana" & "Pune". 3. The brief facts which have culled out after perusing the entire record of the case are that the petitioner is an importer of food items. During the course of its business one consignment comprising of Kiwi fruit was imported in four containers from its foreign suppliers, namely, R.A. Logistics & Distribution LLC, Dubai, UAE. The imported food items were to be imported at the port of ICD GRFL, Ludhiana and the import documents issued by the shipping company i.e. Bill of Lading dated 16.4.2023 mentioned final place of delivery at Ludhiana. A request was made by the petitioner online for filling of the bill entry under Section 46 of the Customs Act, 1962 (hereinafter to be referred as 'the Act') for clearance of the good items at port of ICD Ludhiana. Request was made for seeking permission to file manual bill of entry in terms of Section 46 of the Act and circular dated 04.05.2011. But the request was not acceded to. The said goods had been dispensed with vide inv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf shall, in the case of a vessel or an aircraft deliver to the proper officer an arrival manifest or import manifest] by presenting electronically prior to the arrival] of the vessel or the aircraft, as the case may be and in the case of a vehicle an import report in the Customs station, in such form and manner as may be prescribed] and the arrival manifest or import manifest or the import report or any part thereof, is not delivered to the proper officer within the time specified is satisfied that there was no sufficient cause for such delay, the person in charge or any other person referred to in this sub-section who caused such delay, shall be liable to a penalty not exceeding fifty thousand rupees; Provided that the Principal Commissioner of Customs or Commissioner of Customs may, in cases where it is not feasible to deliver arrival manifest or import manifest by presenting electronically, allow the same to be delivered in any other manner. (2) The person delivering the arrival manifest or import manifest or import report shall at the foot thereof make and subscribe to a declaration as to the truth of its contents. (3) If the proper officer is satisfied that the arr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the petitioner be transferred from Mundra Port to Ludhiana Port. The petitioner was permitted to file manual bill of entry at Ludhiana. The Court observed as under:- "Learned counsel for the respondent has handed over a copy of letter dated 08.05.2023 from respondent No. 5 wherein Assistant Commissioner of Customs, MCD, Mundra Customs House was told to inform customer as well as to clear this cargo from Mundra without further delay as cargo is perishable in nature, line will not be responsible for any loss, cost or consequences in regard to said matter. Further as per Annexure P-2, the final delivery of the goods has been mentioned as Ludhiana. Since the respondent has not been able to correct the IGM, a direction is given to the respondents to let the goods of the petitioner be transferred from Mundra Port to Ludhiana Port. The petitioner shall file the Manual Bill of entry at Ludhiana." In terms of the order passed on 09.05.2023, the petitioner was allowed to take goods from custom areas of Mundra without insistence of NOC. 12. On the next date i.e. 16.05.2023, this Court after noticing the message received from the Deputy Commissioner, Mundra, directed that the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ertificate issued by Dubai Customs. 16. On 06.07.2023, the Court directed the respondent nos. 1 to 4 to release the consignment of the petitioner forthwith and in the meanwhile conduct an enquiry with respect to certificate issued by United Arab Emirate, Federal Customs Authority, Dubai Customs. At the same time directions were given to return the containers in which the Kiwi fruits were lying. The respondents handed over an order dated 04.07.2023 passed by the Deputy Director (E), Plant Protection, Quarantine and Storage, RPQS, Amritsar, wherein it was ordered that the consignment/ container shall be deported within 10 days. However, this Court keeping in view the report dated 04.07.2023 issued by the lab website reflecting that the Kiwi fruit is free from infection of plant pathogen and pathogenic symptom directed respondent nos. 1 to 4 to release the consignment of the petitioner forthwith. 17. On 24.07.2023, the Court directed the department to accept bond and release the goods after accepting Rs. 20 lacs in cash which was to be paid by the petitioner as duty in relation to the other case whereas duty had already been paid with regard to the said goods. A direction was given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation Documents issued by UAE Customs evidencing the Origin of goods as Chile, the goods imported by the Petitioner were thereafter detained by the respondent Customs Ludhiana. 22. Thereafter, the petitioner filed C.M. Nos. 10885-86-CWP of 2023 for placing on record documents as well as praying for joint inspection of the goods, since at the time of inspection of the containers it transpired that the imported "KIWI" had already deteriorated, due to passage of time and for the reasons that the containers in which the KIWI was stuffed was discharging water. The petitioner vide the said application had sought direction for joint examination and compensation in respect of the value of imported KIWI having been rendered unfit due to delay on the part of the respondents. 23. It is submitted by learned counsel for the petitioner that despite consistent orders of release having been passed by this Court the goods comprising of "KIWI" Imported in the month of May 2023 were finally released to the petitioner only on 01.08.2023 after a delay of more than three months, which rendered the goods 'unfit' for consumption as the same were damaged due to efflux of time and delay in clearance cause ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bill of Lading dated 16.04.2023 issued by respondent No.5 it was specifically mentioned that the Final Place of delivery of goods shall be "Ludhiana" the Respondent had erred in amendment of the Import General Manifest at the very first instance when the petitioner had requested for amendment vide email dated 24.05.2023. 27. It is further submitted that the Respondent Department has erred in appreciating that the goods imported by the petitioner were Perishable Food Items Comprising of "KIWI" which has limited shelf life, further the Act of the Respondent Customs in failure to amend the Import General Manifest is in the teeth of Section 30 (3) of the Act, which directs the Proper Officer to amend the Import General Manifest. Thus the perusal of the aforesaid provisions as well as directions issued by this Court in the interim orders passed from time to time demonstrate that the Respondents had failed to perform their duties in accordance with the provisions of Customs Laws. The Respondents cannot be permitted to take shelter of the Circular dated 11.04.2017 as the said circulars has been issued for the proper implementation of the provisions of the Customs Act, more so when in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action of the respondent Shipping Company in filing wrong Import General Manifest is evident from the fact that the Respondent Shipping Company has placed on record annexure R5/3 which is an internal email communication dated 11.04.2023 and 12.04.2023, between the offices of the Shipping Company wherein it has been mentioned that the Final delivery shall be GRFL, ICD Sahnewal, Ludhiana INSGF6. 32. The delay in amendment of IGM and further filing of Manual/ Advance Bill of Entry for clearance of goods at Ludhiana was solely on account of Shipping Company as well as Customs Mundra who were not amending the Import General Manifest as evident from the emails dated 24.04.2024 wherein, it was advised that necessary amendments in IGM was to be carried out by Customs. Further the Shipping Company has referred to letter dated 19.05.2023 and 29.05.2023 wherein the Shipping Line had intimated that necessary amendments were to be carried out by the Customs Mundra, however due to delay in the necessary amendments in IGM the Respondent No.5 insisted that NOC for movement can only be issued subject to payment of Container Detention Charges amounting to Rs. 4,63,247.70, Detention Charges till 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e consignments is mandatory. The representative of the importer, however submitted that the consignment may be released in toto and they undertook to dispose off the damaged kiwi as per law and will provide the disposal certificate to this effect." It is pertinent to mention that the Joint inspection was conducted pertaining to crates of Fresh KIWI stored in front of the container and inspection of Fresh KIWI was not conducted in respect of 100% material stored in all the containers. Thus evidencing that at the relevant point in time, 100% examination of the goods i.e. Fresh "KIWI" was not conducted by the respondent Customs Officers. 36. Since the petitioner had specifically lodged protest vide letter dated 07.07.2023 before depositing duty and the respondent in joint examination report dated 27.07.2023 had permitted the petitioner to file proof of disposal, the petitioner having provided the relevant documents along with photographs and videography, the petitioner is entitled for refund of customs duty paid under protest. 37. As the petitioner was not permitted release of goods at the relevant point in time the goods imported by the Petitioner were illegally detained by the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... over the same." Reliance is also placed on Rajesh Arora Vs Collector of Customs 1998 (101) ELT 246 (Del.) wherein this Court has held as under:- "11. Thus the customs department never disputed the fact that the car in question was being detained by them. If they were not detaining the car they would have immediately responded to the notices of the petitioners and said that the car was not being detained by them and the petitioners was free to take away the same. The customs authorities thus are trying to be clever and in order to overreach the Court have how taken the stand that they never detained the car. The fact remains that the car even when it was kept at the premises of Bagla was impounded and the petitioner in any case was deprived of its possession or custody. Moreover the respondents have themselves admitted in sub-para (D) of the submissions about brief facts of the case that S.P. Bagla submitted a letter dated 22nd September, 1993 wherein he submitted the keys of the car in question to the department with an undertaking not to use the car without the permission of the department. Thus admittedly the car was within the control and custody of the respondents. In law t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it large. Undeniably, the goods, in question, got damaged due to apathy on the part of the authority concerned. Apparently, if the goods would have been returned to the petitioner/respondent at the right earnest, in response to the direction issued by the learned single Bench of this Court, the goods would not have been damaged. Consequently, the respondent would not have suffered any loss. The loss suffered by the respondent is solely due to the irresponsible attitude of the appellant authority and blatant defiance of the direction issued by the learned Single Judge in WP (C) No. 3380 of 1999. 14. The grounds canvassed by the appellants counsel that the loss and damage to the goods was not caused due to the fault of the officers of the Department, but due to non-listing of the application filed by the Department, for clarification of the order passed in WP (C) No. 3380 of 1999, do not at all appeal to us. However, fact remains that due to mishandling of the entire situation and inaction on the part of the appellants, the goods got damaged and consequently, the respondent had to sustain loss and injury, for which he has been rightly held to be entitled to adequate compensation. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d by the negligence of officers of the State in respect of cause of action for which suits are maintainable in civil court. Since the seizure and confiscation of appellant's goods was not in exercise of power which could be considered to be act of State of which no cognizance could be taken by the civil court, the suit of the appellant could not be dismissed." 16. In State of Bombay (now Gujarat) v. Menon Mahomed Haji Hasam: AIR 1967 SC 1885, Hon'ble Supreme Court observed that "the power to seize and confiscate was dependent upon a customs offence having been committed or a suspicion that such offence had been committed. The order of the Customs Officer was not final as it was subject to an appeal and if the appellate authority found that there was no good ground for the exercise of that power, the property could no longer be retained and had under the Act to be returned to the owner. That being the position and the property being liable to be returned there was not only a statutory obligation to return but until the order of confiscation became final an implied obligation to preserve the property intact and for that purpose to take such care of it as a reasonable person in like ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y seized by them, it was entitled to be paid the price thereof as if the essential commodity was had been sold to the Government. The fiction of sale which is incorporated in sub-section (2) is to protect the interest of the owner of goods. It has to be construed liberally and in favour of the owner. The respondents were thus liable to pay the price of the Fertiliser with interest as directed by the Trial Court." 41. In Basavva Kom Dyamangouda Patil (SMT) Vs State of Mysore and Another (1977) SCC (Crl.) 598, the Supreme Court held as under:- "6. It is common ground that these articles belonged to the complainant/appellant and had been stolen from her house. It is therefore, clear that the articles were the subject matter of an offence. This fact, therefore, is sufficient to clothe the Magistrate with the power to pass an order for return of the property. Where the property is stolen, lost or destroyed and there is no prima facie defence made out that the State or its Officers had taken due care and caution to protect the property, the Magistrate may, in an appropriate case, where the ends of justice so require, order payment of the value of the property. We do not agree with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight of the owner to demand the return of the property or the obligation of the Government to return it. The order of disposal in any event was obtained on a false representation that the property was an unclaimed property. Even if the Government cannot be said to be in the position of a bailee, it was in any case bound to return the said property by reason of its statutory obligation or to pay its value if it had disabled itself from returning it either by its own act or by any of its agents and servants. In these circumstances it is difficult to appreciate how the contentions that the State Government is not liable for any torturous act of its servants can possibly arise." 43. In Century Spinning and Manufacturing Company Ltd. Vs Ulhasnagar Municipal Council & Another (1970) 1 Supreme Court Cases 582, the Supreme Court held as under:- "8. The High Court may, in exercise of its discretion, decline to exercise its extraordinary jurisdiction under Article 226 of the Constitution. But the discretion is judicial if the petition makes a claim which is frivolous, vexatious, or prima facie unjust, or may not appropriately be tried in a petition invoking extraordinary jurisdiction the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not genuine and is fabricated as they had received an email from Deputy Director, DRI, Nagpur, of the petitioner having imported Iranian origin Kiwi fruits. 47. Learned counsel for the respondents has also invited attention to provisions of Section 26A (3) of the Act to submit that no refund under sub-section (1) shall be allowed in respect of perishable goods and goods which have exceeded in their shelf life or their recommended storage before use period. Therefore, there was no occasion to permit refund of duty. He relies on B. Premanand and others vs Mohan Koikal and others 2011 (4) SCC 266. 48. Learned counsel for the respondents further submits that on 27.07.2023, when the joint inspection was done, the Kiwis which were damaged from 20 to 25% while the application under Section 26A of the Act has been moved alleging 100% of kiwis being damaged. Claim of refund of 100% custom duty, therefore, is not maintainable. He further submits that disputed question is involved in the petition and this Court ought not entertain the plea of refund of the duty. 49. We have considered the submissions. 50. From the perusal of the facts which have come on record and the orders passed by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the written statement which has been taken on record. We are, therefore, constrained to find the lackadaisical approach adopted by the respondents, which has resulted in causing loss to the importer. It would, therefore, be a rule in the provisions of Section 26A (3) of the Act, which reads as under:- "26A. Refund of import duty in certain cases. (1 )Where on the importation of any goods capable of being easily identified as such imported goods, any duty has been paid on clearance of such goods for home consumption, such duty shall be refunded to the person by whom or on whose behalf it was paid, if- (a) the goods are found to be defective or otherwise not in conformity with the specifications agreed upon between the importer and the supplier of goods: Provided that the goods have not been worked, repaired or used after importation except where such use was indispensable to discover the defects or non-conformity with the specifications; (b) the goods are identified to the satisfaction of the Assistant Commissioner of Customs or Deputy Commissioner of Customs as the goods which were imported; (c) the importer does not claim drawback under any other provision of this Act; a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the aforesaid Section does not allow refund of duty in respect of perishable goods and the goods which have exceeded their shelf life or where the goods are found to have been damaged. However, at the same time it does not deal with the situations, as have arisen in the present case. Obviously, as noticed above, the department has issued several circulars from time to time sensitizing the need to deal with the import goods expeditiously, which are perishable in nature. But we find that even after intervention of this Court directing the respondents to take action expeditiously, the officers have put a lot of obstacles and hurdles in the release of perishable goods resulting the goods to be unuseable for human consumption. In the circumstances, the question arises as to whether the claim of import duty deposited by the importer/ petitioner under protest should be allowed to be returned by the Custom Authorities. 54. The interpretation of Section 26A (3) of the Act, as noticed above, cannot be held to mean the denial of a refund claim even where the goods have perished and the shelf life has ended after the goods have already touched the store. We have extensively noticed the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d the citizen must revive the amount of compensation from the State, which shall have the right to be indemnified by the wrong doer. In the assessment of compensation, the emphasis has to be on the compensatory and not on punitive element. The objective is to apply balm to the wounds and not to punish the transgressor or the offender, as awarding appropriate punishment for the offender, as awarding appropriate punishment for the offence (irrespective of compensation) must be left to the criminal courts in which the offender is prosecuted, which the State, in law, is duty bound to do, That award of compensation in the public law jurisdiction is also without prejudice to any other action like civil suit for damages which is lawfully available to the victim or the heirs of the deceased victim with respect to the same matter for the tortious act committed by the functionaries of the State. The quantum of compensation will. of course, depend upon the peculiar facts of each case and no strait jacket formula can be evolved in that behalf. The relief to redress the wrong for the established invasion of the fundamental rights of the citizen, under he public law jurisdiction is, in addition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... keep in view the sufferings of the injured person which would include his inability to lead a full life, his incapacity to enjoy the normal amenities which he would have enjoyed but for the injuries and his ability to earn as much as he used to earn or could have earned. Hence, while computing compensation the approach of the Tribunal or a court has to be broad based. Needless to say, it would involve some guesswork as there cannot be any mathematical exactitude or a precise formula to determine the quantum of compensation. In determination of compensation the fundamental criterion of "just compensation" should be inhered." 60. In another case Mahabir and others vs The State of Haryana 2025 INSC 120 relating to compensation under the criminal law where Hon'ble the Supreme Court set aside the order of conviction and compensation was awarded to the victim. 61. Hon'ble the Supreme Court recently in CA No. 004590 of 2025- Zulfiquar Haider vs The State of Uttar Pradesh, decided on 01.04.2025 has awarded compensation to the victims whose houses were wrongfully demolished. The Courts in cases where there is deliberate and willful action of the State or its functionaries in depriving an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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