Bombay High Court
Kirtilal Moolchand And Co. vs Union Of India (Uoi) And Ors. on 24 July, 1986
Equivalent citations: 1988(14)ECR52(BOMBAY)
JUDGMENT Pendse, J.
1. The short question which falls for determination in this petition filed under Article 226 of the Constitution of India is for what period the petitioners are entitled to receive detention certificate from the Customs Authorities. Only few facts are required to be stated to appreciate the claim made by the petitioners.
2. The petitioners secured a licence on November 21, 1979 for import of Alloy steel scrap to any chemical composition as shown under Item 23 Appendix 7 of Import Policy April 1978 to March 1979. In pursuance of the licence, the petitioners were entitled to import 140.243 metric tonnes of Alloy steel scrap. The imported goods arrived by the ship in May 1980 and three bills of entry bearing Nos. 6/92, 260/78 and 260/79 were filed on May 8, 1980. The Customs Authorities did not bother to examine the goods till October 8, 1980 and the goods were lying open under the sky. The Appraiser Group of Customs made a report on October 13, 1980 that though the goods imported are scrap they are of serviceable condition. The petitioners made request for re-examination of goods by an independent authority and accordingly the Customs referred the matter to the Regional Iron & Steel Controller. Curiously this independent authority did not bother to carry out any examination for over one year inspite of several reminders sent by the petitioners. As the report was not received, show cause notice was given to the petitioners and after personal hearing, an adjudication order was passed and the petitioners were permitted to clear the goods covered by the three bills of entries on August 5, 1981.
3. The petitioners were issued detention certificate in respect of bills of entry Nos. 6/92 and 260/78 on August 14, 1981 and the period covered by this detention certificate was from October 8, 1980 to August 5, 1981. The petitioners claim that the detention certificate should be given in respect of the third bill of entry and the period of detention certificate should be from May 8, 1980, and not from the date when the Appraiser group examined the goods. The request made by the petitioners did not receive any response from the Customs Authorities and that gave rise to filing of the present petition in June 1982.
4. Shri Mehta, learned Counsel appearing on behalf of the petitioners, submitted that the goods arrived in the Port in May 1980 and the three bills of entries were filed on arrival of the goods, but the Customs Authorities did not bother to carry out their duties and examine the goods till October 8, 1980 and the detention certificate cannot be refused for this period which was lost because of the failure of the Customs Authorities. Shri Mehta submits that the petitioners are required to pay demurrage charges merely because the Appraiser group did not bother to examine the goods. In my judgment, the claim made by the petitioners is correct and there is no answer why the detention certificate should not be issued from May 8, 1980 till August 5, 1981 in respect of the goods covered by all the three bills of entries.
Shri Rege, learned Counsel appearing for the Department, sought adjournment of the hearing on the ground that the papers in respect of this case are not traceable in the office. 1 declined to grant adjournment, because the matter was adjourned previously on two occasions for the same reason. The inability of the department to trace the papers cannot postpone the hearing indefinitely. The petition was admitted in the year 1982 and though almost four years had lapsed from the date of admission, it is only when the petition was called out before me for hearing that the department awoke from slumber and sought an adjournment on the ground that the papers are not traceable. In these circumstances adjournment could not be granted.
5. Shri Rege then submitted that the goods were not examined by the Customs Appraiser because the bills of entries were taken back by the petitioners and not refiled. I inquired from Shri Rege as to what is the basis For this submission and the learned Counsel stated that it is on instructions from the department and the instructions are based on the practice followed in the department. In my judgment, the submission does not require any investigation in absence of any affidavit.
6. Accordingly, petition succeeds and the respondents are directed to issue detention certificate in respect of bill of entry No. 260/79 for the period commencing from May 8, 1980 till August 5, 1981. The respondents are also directed to issue detention certificate for the period commencing from May 8, 1980 to October 8, 1980 in respect of Bills of entries Nos. 6/92 and 260/78. The detention certificates as directed shall be issued within a period of four weeks from to-day.
In the circumstances of the case, there will be no order as to costs.
N.B. By consent in paragraph 6 of judgment the period of detention certificate is altered to "from May 8, 1980 to August 5, 1981 in respect of bills of entry Nos. 6/92 and 260/78.