Preet Trading Company Through Its ... vs Principal Commissioner Of Customs on 27 April, 2023

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Gujarat High Court

Preet Trading Company Through Its ... vs Principal Commissioner Of Customs on 27 April, 2023

Bench: N.V.Anjaria

                                                                                   NEUTRAL CITATION




      C/SCA/1040/2023                                ORDER DATED: 27/04/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

         R/SPECIAL CIVIL APPLICATION NO.             1040 of 2023
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      PREET TRADING COMPANY THROUGH ITS PROPRIETOR RAJBIR
                      GHANSHYAMDAS MANUJA
                             Versus
               PRINCIPAL COMMISSIONER OF CUSTOMS
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Appearance:
MR AADITYA D BHATT(8580) for the Petitioner(s) No. 1
MS CHANDNI S JOSHI(9490) for the Petitioner(s) No. 1
MR CB GUPTA(1685) for the Respondent(s) No. 1,2
NOTICE SERVED BY DS for the Respondent(s) No. 3,4
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     CORAM:HONOURABLE MR. JUSTICE N.V.ANJARIA
           and
           HONOURABLE MR. JUSTICE DEVAN M. DESAI

                       Date : 27/04/2023
                           ORAL ORDER

(PER : HONOURABLE MR. JUSTICE DEVAN M. DESAI)

1. Heard learned advocate Mr.Aaditya Bhatt for the petitioner and learned advocate Mr.C.B.Gupta for respondent Nos.1 and 2.

1.1 In the facts and circumstances of the case, the petition is taken up for its final consideration with consent of learned advocates for the parties.

2. Rule returnable forthwith. Learned advocate Mr.C.B.Gupta waives service of notice of Rule for respondent Nos.1 and 2.

3. By way of the present petition under Article 226 of the Constitution of India, the petitioner has sought for following reliefs :

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NEUTRAL CITATION C/SCA/1040/2023 ORDER DATED: 27/04/2023 undefined "A. Your lordships may be pleased to direct Respondent No.1 and Respondent no.2 to take all necessary steps and ensure that the Detention cum Demurrage waiver dated 07.10.2022 and 20.09.2022 Amnnexure-A (Colly.) issued under Sea Cargo Manifest Regulation 2018 is implemented by all concerned including Respondent nos.3 and Respondent no.4 and thereafter to physically release in the custody of the petitioner, the imported goods comprising of 2 containers of PP Regrinds imported by the Petitioner.

B. Your Lordships may be pleased to issue a writ of certiorari or Mandamus or writ in the nature of Certiorari or mandamus or any other appropriate Writ, order or direction to Respondent no.1 to initiate action against Respondent NO.3 and Respondent No.4 in terms of Sea Cargo manifest Regulation 2018 in view of non-compliance of waiver dated 07.10.2022 and 20.09.2022 Annexure-A (colly.).

C. Your Lordships may be pleased to issue a writ of certiorari or Mandamus or writ in the nature of Certiorari or Mandamus or any other appropriate Writ, order or direction to the Respondent no.4 to waive off the detention charges if any, in view of Regulation 6(i) ((l) of the Handling of Cargo in Customs Area Regulations, 2009;

D. Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to direct the Respondents to effect physical delivery of the goods upon any other condition, since the Petitioner has limited funds for the smooth functioning of the business and since 5 months the goods are kept within the possession of Respondent No.4 which is resulting into loss;"

3.1 Learned advocate for the petitioner at the outset submitted that the petitioner is primarily interested in release of the goods.

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NEUTRAL CITATION C/SCA/1040/2023 ORDER DATED: 27/04/2023 undefined

4. Learned advocate for the petitioner has submitted that the petitioner is engaged in the business of trading various commodities. The petitioner had imported two lots of Regrind Plastic Big and Small Bags on 06.08.2022 and a bill of lading was also issued to that effect. The petitioner imported said goods vide bill of entry No.1012959 dated 22.08.2022 through warehouse at Kandla Special Economic Zone (KASEZ). The petitioner had also received a tax invoice from respondent No.3 for a sum of Rs.41,300/- for destination and delivery order charges dated 22.08.2022.

5. Respondent No.3 informed the petitioner that from the containers which were in the possession of officer of the Special Intelligence and Investigation Branch for the examination of goods, nothing objectionable was found with the goods of the petitioner. It is further submitted that the Deputy Commissioner vide communication dated 20.09.2022 directed respondent No.4 to release the goods of the petitioner after due compliance of the provisions of Customs Act, 1962.

6. Respondent No.3 was vide email dated 27.09.2022 directed to release the containers and waive off the detention and demurrage charges. However, respondent No.3 did not waive detention charges and sent an invoice dated 22.09.2022 for an amount of Page 3 of 7 Downloaded on : Sun Sep 17 18:55:10 IST 2023 NEUTRAL CITATION C/SCA/1040/2023 ORDER DATED: 27/04/2023 undefined Rs.7,78,232/- to the petitioner. Upon receipt of the said invoice, petitioner requested the Deputy Commissioner, Special Investigation and Intelligence Branch to look into the matter vide communication dated 23.09.2022. Upon the said request, the Deputy Commissioner, Special Investigation and Intelligence Branch sent a letter to respondent No.3 to waive detention charges in view of Section 10(1)(l) of the Sea Cargo Manifest and Trans Shipment Regulations, 2018 and Regulation 6(1)(i) of the Handling of Cargo in Customs Area Regulation, 2009.

7. The petitioner also issued a legal notice dated 04.10.2022 to respondent No.3 for the wrongful arrest of the cargo and for wrongfully demanding the detention charges etc. However, the cargo was not released by respondent No.3 and instead of releasing the cargo, respondent No.4 sent a notice under Section 48 of the Customs Act, 1962, dated 20.10.2022 to the petitioner, inter-alia stating that the cargo would be auctioned off and the expenses incurred would be recovered from the proceeds of the auction. It is further submitted that on 13.12.2022, respondent No.1 vide email communicated to the petitioner for the updation of the clearance process as respondent No.4 was directed by the disposal section for further movement of disposal of the consignment. Respondent No.1 issued a letter dated 07.10.2022 directing respondent No.3 not to charge Page 4 of 7 Downloaded on : Sun Sep 17 18:55:10 IST 2023 NEUTRAL CITATION C/SCA/1040/2023 ORDER DATED: 27/04/2023 undefined any detention and demurrage charges for the period of detention of goods by the customs in terms of Regulation 10(1) of Sea Cargo Manifest and Trans Shipment Regulations, 2018.

8. Learned advocate for the petitioner has also drawn our attention to the communications dated 07.10.2022 and 20.09.2022. Learned advocate for the petitioner has submitted that respondent No.3 has not challenged the communications dated 20.09.2022 and 07.10.2022 before any competent forum.

8.1 Learned advocate for the petitioner submitted that despite the stand of the Custom authorities in favour of the petitioners as above, the goods are not released because of the insistence of the respondents no.3 and 4-private parties, for payment of detention and demurage charges.

9. Learned advocate for respondent Nos.1 and 2 has also drawn the attention of this Court by referring the affidavit-in-reply filed in the present case, wherein respondent Nos.1 and 2 have in paragraph-8 categorically submitted that upon receipt of the representation dated 23.09.2022 from the petitioner, respondent No.2 vide letter dated 17.10.2022 drawn the attention of respondent No.3 towards the aforesaid regulation 10(1)(l) of the Sea Cargo Manifest and Trans Shipment Regulations, 2018 and Page 5 of 7 Downloaded on : Sun Sep 17 18:55:10 IST 2023 NEUTRAL CITATION C/SCA/1040/2023 ORDER DATED: 27/04/2023 undefined informed that the charging of detention charge by respondent No.3 is clearly in contravention of regulation 10(1) of the Sea Cargo Manifest and Trans Shipment Regulation, 2018.

10. In view of the above facts and circumstances, only prayer which can be considered for the petitioners is in respect of release of goods, more particularly in light of communications dated 20.09.2022 and 07.10.2022 from the respondents no.1 and 2 Custom authorities. In view of the same, the stand of respondents no.3 and 4 could not be impediment in releasing the goods. The claim of detention and demurrage charges by the said private parties could be enforced by them by taking recourse to civil remedies in accordance with law, as may be permissible. However, the Court shall not express any opinion in that regard.

11. Hence, without going into further factual details and merits of the case, the respondents are hereby directed to release the goods which are under their custody within two weeks from the date of receipt of this order.

12. Even as the prayers other than release of goods are not pressed by the learned advocate for the petitioner, they could not have been granted by the Court. The goods shall however be released as directed above.

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NEUTRAL CITATION C/SCA/1040/2023 ORDER DATED: 27/04/2023 undefined

13. Petition is disposed of as per the above directions and observations. Rule is made absolute to the such extent.

(N.V.ANJARIA, J) (D. M. DESAI, J) GAURAV J THAKER Page 7 of 7 Downloaded on : Sun Sep 17 18:55:10 IST 2023

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