Bombay High Court
Sahaj Impex vs Balmer Lawrie And Co. Ltd on 18 January, 2021
Bench: Ujjal Bhuyan, Milind N. Jadhav
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R.M. AMBERKAR
(Private Secretary)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 10492 OF 2019
Sahaj Impex .. Petitioner
Versus
Balmer Lawrie & Co Ltd & Anr. .. Respondents
...................
Mr. Vimal Jha i/by Lex Prime Law Firm for the Petitioner
Mr. J.B. Mishra for Respondent No. 2
...................
CORAM : UJJAL BHUYAN &
MILIND N. JADHAV, JJ.
DATE : JANUARY 18, 2021.
Judgment and Order (Oral) (Per : Ujjal Bhuyan, J.) :
Heard Mr. Jha, learned counsel for the petitioner and Mr. J.B. Mishra, learned counsel for respondent No. 2. None has appeared for respondent No. 1 though in terms of registry's note dated 08.01.2021, respondent No.1 has been duly served as per bailiff report dated 21.12.2020.
2. Before proceeding further, we may mention that in this case, notice was issued as far back on 10.02.2020. In the order dated 13.03.2020, this Court noted that though the respondents are situated at Navi Mumbai and Raigad, notices had not been received yet. Registry was directed to take necessary steps to ensure service of notice.
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4. as wp 10492-19.doc Subsequently, in the proceedings held on 05.11.2020, Mr. Mishra, learned counsel appeared on behalf of respondent No. 2 while respondent No. 1 continued to remain unrepresented. It was made clear that if respondent No.1 had been served but continued to remain unrepresented, Court would proceed with the hearing. On subsequent dates, registry was directed to serve notice upon respondent No. 1 and thereafter to put up service report. It is in these circumstances that registry put up a note on 08.01.2021 stating that as per the report of bailiff dated 21.12.2020, respondent No. 1 was duly served.
3. By filing this petition under Article 226 of the Constitution of India, petitioner seeks a direction to the respondents to release the container No. TTNU9895081 containing the imported goods of the petitioner declared vide bill of entry No. 7540462 dated 07.08.2018 without paying rent, demurrage and other charges for re-export as per customs order dated 28.11.2018.
4. Case of the petitioner is that it is a company incorporated under the Companies Act, 1956 having its registered office at Indore. It is engaged in the business of import and export of plastic granules and regrind.
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5. It is stated that petitioner had imported plastic regrind from Dubai under bill of entry No. 7540462 dated 07.08.2018. When the cargo reached Nhava Sheva port, it was put on hold by the Special Investigation and Intelligence Branch of the customs department for the purpose of investigation. In this connection, the Special Investigation and Intelligence Branch kept the container of the petitioner in the container freight station of respondent No. 1 which it is stated is the legal custodian of customs to keep the container during inquiry or investigation. Reference has been made to a public notice No. 26/2010 dated 02.03.2010 issued by the Commissioner of Customs (Export), Nhava Sheva, Maharashtra whereby it was mentioned that some Customs Cargo Service Providers including custodians of container freight stations under the jurisdiction of Jawaharlal Nehru Custom House (JNCH) were charging rent / demurrage on the goods seized / detained / confiscated by the proper officer of customs. It was pointed out that this was a violation of Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009 which stipulates that Customs Cargo Service Providers including custodians of container freight stations should not charge any rent or demurrage on the goods seized or detained or confiscated by the proper 3 of 13
4. as wp 10492-19.doc officer. In such cases, the Customs Cargo Service Providers should allow the goods on production of a certificate issued by the proper officer certifying such period without charging and collecting any rent or demurrage for such period. Proforma of such certificate was enclosed to the public notice. Violation of the above regulation would attract penal action, it was cautioned.
6. Respondent No. 1 had sent two notices dated 01.09.2018 and 16.09.2018 with regard to auction of the cargo if the consignee failed to clear the container / cargo within 30 days period. Petitioner has stated that container No. TTNU9895081 containing the imported cargo of the petitioner declared vide bill of entry No. 7540462 dated 07.08.2018 is lying since 02.08.2018 with respondent No.1 which is the custodian of customs.
7. A letter dated 28.11.2018 was issued by the Deputy Commissioner of Customs, Special Investigation and Intelligence Branch to the Deputy Commissioner of Customs, Group 2G, JNCH, Nhava Sheva informing the latter that the adjudicating authority had approved re-export of the goods imported vide bill of entry No. 7540462 dated 07.08.2018 of the petitioner on furnishing a bond of the full value of the 4 of 13
4. as wp 10492-19.doc goods and bank guarantee of Rs. 4 lacs. It was mentioned that petitioner had submitted bank guarantee of Rs. 4 lacs and Provisional Duty (P.D.) Bond of Rs. 15,24,000.00 for re- export of the goods. Along with the said letter, original copy of the bank guarantee and P.D. Bond furnished by the petitioner were enclosed.
8. Thus, petitioner had complied with the conditions imposed in the order of the adjudicating authority for re- export of the goods which it had imported by furnishing the bank guarantee of Rs. 4 lacs and P.D.Bond of Rs.15,24,000.00 which covered the assessable value of the goods.
9. Superintendent of Customs, Special Investigation and Intelligence Branch issued a certificate dated 31.01.2019 certifying that the goods declared by the petitioner vide bill of entry No. 7540462 dated 07.08.2018 were detained by the Special Investigation and Intelligence Branch for the period from 14.08.2018 to 06.02.2019. It was clarified that the above certificate was issued in terms of public notice No. 26/2010 dated 02.03.2010. Copies of the said certificate were furnished amongst others to respondent No. 1.
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10. In addition to the above, petitioner has stated that copy of the said certificate was submitted by itself on the same day i.e on 31.01.2019 to respondent No. 1. However, there was no response from respondent No. 1. Petitioner sent e-mail on 05.02.2019 to which, however, respondent No.1 replied that writ petition No. 4679 of 2010 was pending before this Court in which a challenge has been made to Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. The writ petition has been filed by CFS Association of India of which respondent No. 1 is a member. While stating that no interim order had been passed in the said writ petition, claim of the petitioner to waiver of rent and demurrage charges was however denied.
11. Since respondent No. 1 did not release the goods of the petitioner and on the other hand demanded rent and demurrage charges which was more than Rs. 17 lacs, petitioner has filed the present writ petition seeking the relief as indicated above.
12. Learned counsel for the petitioner has referred to sections 45 and 141 of the Customs Act, 1962 (briefly, "the Customs Act" hereinafter). He has also referred to the public notice No. 26/2010 as well as Regulation 6(1) of the 6 of 13
4. as wp 10492-19.doc Handling of Cargo in Customs Areas Regulations, 2009. After referring to the aforesaid provisions and the public notice, he submits that when the customs authorities had approved re- export of the goods with certain conditions which have been duly complied with by the petitioner and when the customs authorities had issued certificate dated 31.01.2019 for waiver of rent and demurrage charges covering the period from 14.08.2018 to 06.02.2019, there can be no justification on the part of respondent No.1 not to release the goods of the petitioner for re-export.
12.1. On a query by the Court, he submits that respondent No. 1 is a Government of India enterprise. Necessary particulars in this regard obtained from the official website of respondent No. 1 have been placed on record. 12.2. He therefore submits that this Court may be pleased to issue necessary direction to respondent No.1 to forthwith release the goods of the petitioner for re-export.
13. Mr. Mishra, learned counsel for respondent No.2 has referred to the prayer portion in the writ petition and submits that no prayer has been made by the petitioner against the customs department, rather no grievance has 7 of 13
4. as wp 10492-19.doc been expressed by the petitioner against the authorities of the customs department. According to him, dispute between petitioner and respondent No.1 is a contractual one and, therefore, a suit would be the proper remedy for the petitioner.
14. Submissions made by learned counsel for the parties have been duly considered. Also perused the materials on record.
15. Section 45 of the Customs Act under the heading 'clearance of imported goods' deals with restrictions on custody and removal of imported goods. Sub-section (1) says that save as otherwise provided in any law for the time being in force, all imported goods unloaded in a customs area shall remain in the custody of such person as may be approved by the Principal Commissioner of Customs or Commissioner of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII which deals with goods in transit. 15.1. As per sub-section (2), the person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time 8 of 13
4. as wp 10492-19.doc being in force, shall keep a record of such goods and send a copy thereof to the proper officer; shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer or in such manner as may be prescribed.
15.2. Sub-section (3) deals with pilferation of imported goods in a customs area with which we are not presently concerned.
16. Section 141 of the Customs Act says that conveyances and goods in a customs area are subject to control of officers of customs. As per sub-section (1), all the conveyances and goods in a customs area shall, for the purpose of enforcing the provisions of the Customs Act, be subject to the control of officers of customs. Sub-section (2) says that the imported or export goods may be received, stored, delivered, despatched or otherwise handled in a customs area in such manner as may be prescribed and the responsibilities of persons engaged in the aforesaid activities shall be such as may be prescribed.
17. Section 157 of the Customs Act provides the general power to make regulations.
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18. In exercise of powers conferred by sub-section (2) of section 141 read with section 157 of the Customs Act, the Central Board of Excise and Customs (briefly "the Board"
hereinafter) have made a set of regulations called Handling of Cargo in Customs Areas Regulations, 2009 (briefly "the Regulations" hereinafter). Regulation 2(1)(b) defines 'Customs Cargo Services Provider" to mean any person responsible for receipt, storage, delivery, dispatch or otherwise handling of imported goods and export goods and includes a custodian as referred to in section 45 of the Act and persons as referred to in sub-section (2) of section 141 of the Act.
18.1. Regulation 6 deals with responsibilities of Customs Cargo Service Provider. A large number of responsibilities to be discharged by Customs Cargo Service Provider are mentioned in Regulation 6. Relevant for the present case is the responsibility mentioned in clause (l) which says that the Customs Cargo Service Provider shall subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive Officer or Examining Officer, as the 10 of 13
4. as wp 10492-19.doc case may be.
19. It is not in dispute that respondent No. 1 is a Customs Cargo Service Provider as defined in Regulation 2(1)
(b) of the Regulations. Being so, it is under a legal obligation to discharge the responsibilities as mandated under Regulation 6, more particularly in clause (l) thereof which clearly says that a Customs Cargo Service Provider shall not charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive Officer or Examining Officer as the case may be. This position has been clarified by the Commissioner of Customs (Export) in the public notice dated 26/2010 with the further clarification that Customs Cargo Service Providers shall allow the goods on production of a certificate issued from the proper officer certifying such period of seizure or detention or confiscation without charging and collecting any rent or demurrage for such period.
20. It is also not disputed that the goods imported by the petitioner vide bill of entry No. 7540462 dated 07.08.2018 were detained by the proper officer of the customs department for the period from 14.08.2018 to 11 of 13
4. as wp 10492-19.doc 06.02.2019 which has been certified by the Superintendent of Customs in the prescribed format further mentioning that the certificate was issued as per public notice No. 26/2010 dated 02.03.2010.
21. Therefore, for the period from 14.08.2018 to 06.02.2019, respondent No. 1 is under a legal obligation not to charge any rent or demurrage on the goods of the petitioner or on the container in which the goods have been stored and kept under its custody. Following the certificate dated 31.01.2019, it was also under a legal obligation to release the goods kept under its custody on or before 06.02.2019 to enable the petitioner to re-export the goods. Failure to do so has not only caused prejudice to the petitioner but would also disentitle respondent No. 1 from claiming any rent and demurrage for the period beyond 06.02.2019 till release of the goods because such retention of goods would be clearly unlawful being in violation of Regulation 6(1)(l) of the Regulations and the public notice dated 02.03.2010.
22. That being the position, we do not agree with the submissions made by Mr. Mishra that the dispute between petitioner and respondent No. 1 being contractual, petitioner 12 of 13
4. as wp 10492-19.doc should be relegated to the forum of civil court for obtaining relief. That apart, respondent No.1 being a Government of India enterprise has to act in a responsible manner. Moreover, being a Customs Cargo Service Provider, it is subject to the control of the officers of the customs department and cannot act in defiance of the law and of lawful directions of the customs authorities.
23. Thus having regard to the above, we direct respondent No.1 to release the goods imported by the petitioner vide bill of entry No. 7540462 dated 07.08.2018 kept in container No. TTNU9895081 forthwith to enable the petitioner to re-export the same in terms of letter dated 28.11.2018 of the Deputy Commissioner of Customs, Special Investigation and Intelligence Branch.
24. Writ petition is accordingly allowed. However, there shall be no order as to costs.
25. This order will be digitally signed by the Private Secretary of this Court. All concerned to act on production by fax or email of a digitally signed copy of this order.
[ MILIND N. JADHAV, J. ] [ UJJAL BHUYAN, J. ]
Ravindra
Digitally signed
by Ravindra M.
Amberkar
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M. Date:
2021.01.21
Amberkar 14:50:54
+0530