Bombay High Court
Sushil Jain vs Union Of India And 7 Ors on 18 December, 2020
Author: Abhay Ahuja
Bench: Ujjal Bhuyan, Abhay Ahuja
Digitally
signed by
Minal Minal V.
Parab
V. Date:
2020.12.19
Parab 14:10:33
+0530
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION (L) NO.5324 OF 2020
Mr.Sushil Jain ... Petitioner
V/s.
Union of India and ors. ... Respondents
AND
WRIT PETITION (L) NO.5315 OF 2020
Mr.Yatish Khandelwal ... Petitioner
V/s.
Union of India and ors. ... Respondents
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Mr.Mohan Jaykar with Mr.Nikhil Wable, Mr.Zeeshan Syed, Ms.
Divya Tyagi and Mr.Anand Lalwani i/by M/s Jaykar and
Partners, Advocates for the Petitioner.
Ms.Shehnaz V.Bharucha with Ms.Priyanka Chavan, Advocates
of Respondent Nos.4 and 5 in WPL No.5315 of 2020.
Mr.N.Venkatraman, ASG with Mr.P.S.Jetly, Senior Advocate and
Mr.J.B.Mishra, Advocates for the Respondents in both the
petitions.
---
CORAM : UJJAL BHUYAN &
ABHAY AHUJA, JJ.
DATE : DECEMBER 18, 2020 P.C.:-
1. This order will dispose of both the writ petitions.
2. Heard Mr.Jaykar, learned counsel for the petitioners and Mr.Venkatraman, learned Additional Solicitor General of India for the respondents.
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3. In Writ Petition (L) No.5324 of 2020 petitioner seeks a direction to respondent Nos.2 and 3 to take on record the bills of entry for warehousing of the cargo covered by 11 bills of lading for 3265.710 MTS of imported yellow peas and to pass orders thereon for warehousing of the said imported goods. Additional prayer has been made that respondents be restrained from withholding the said bills of entry from warehousing and also from taking steps for selling the imported goods in question.
3.1. Be it stated that by the said bills of lading petitioner had imported whole green/yellow peas.
4. In Writ Petition (L) No.5315 of 2020 petitioner seeks similar direction to respondent Nos.2 and 3 regarding 15 bills of lading covering 6530.760 MTS of imported yellow peas and 467.90 MTS of imported green peas; other prayers being the same.
5. While in Writ Petition (L) No.5324 of 2020 the imported goods reached Nhavasheva port during the months of December, 2019 and January 2020 with the bills of lading being of various dates from 21st November, 2019 to 12 th December, 2019; in Writ Petition (L) No.5315 of 2020 the imported goods arrived at the port of Nhavasheva in December, 2019 and January, 2020, the bills of lading being from 28th October, 2019 to 30th November, 2019. Priya Soparkar 3 1 wpl 5324-20 and 2 wpl 5315-20-os
6. In both the cases, the importer and exporter code of the two importers were suspended vide orders dated 13 th December, 2019 and 12th December, 2019 respectively. Against both the orders petitioners have preferred appeals which are pending.
7. Grievance of the petitioners is that their attempt to electronically present the bills of entry was not accepted by the customs automated system on account of suspension of importer exporter code. Thereafter, petitioners requested respondent No.3 to accept manual fling of the bills of entry for warehousing on 9th January, 2020 but it is alleged that there has been no response to such request. On the other hand, respondent Nos.7 and 8 having custody of the containers containing the imported goods have sought to auction the goods under section 48 of the Customs Act, 1962 and in this connection had issued auction notices to the petitioners on various dates in February and March, 2020.
8. It is under such circumstances that the two writ petitions have been fled seeking the reliefs as indicated above.
9. Responding to our notice dated 3rd November, 2020 respondent Nos.2 and 3 have fled common afdavits in both the writ petitions contesting the averments made by the petitioners.
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10. In view of the order which we indicated to learned counsel for the parties and which we propose to pass it may not be necessary for us to deal with the rival contentions.
11. Infact, in the course of the hearing today, when it was indicated to learned counsel for the parties that the court intend to direct respondent Nos.2 and 3 to pass an order on the prayer of the petitioners for warehousing, learned counsel for the parties agreed to the same.
12. Section 46 of the Customs Act, 1962 (briefy "the Customs Act" hereinafter) deals with entry on goods on importation. As per sub-section (1) the importer of any goods other than goods intended for transit or transhipment shall make entry thereof by presenting electronically on the customs automated system to the proper ofcer a bill of entry for home consumption or warehousing in such form and manner as may be prescribed. As per the frst proviso, the Principal Commissioner of Customs or the Commissioner of Customs may allow an entry to be presented in any other manner in a case where it is not feasible to make entry by presenting electronically on the customs automated system.
13. Thus sub-section (1) of section 46 provides that an importer of goods shall make entry of bills of entry for home consumption or warehousing by presenting those bills electronically on the customs automated system. But if that is not feasible, the Principal Commissioner or Commissioner of Customs may allow such entry in any other manner. Priya Soparkar 5 1 wpl 5324-20 and 2 wpl 5315-20-os
14. Section 48 lays down the procedure in case of goods not cleared, warehoused or transhipped within 30 days after unloading. It says that if any goods brought into India from a place outside India are not cleared for home consumption or warehoused or transhipped within thirty days from the date of unloading at a customs station or within such further time as the proper ofcer may allow or if the title to any imported goods is reliquished, such goods may after notice to the importer and with the permission of the proper ofcer be sold by the person having custody thereof.
15. Under section 48, if the imported goods are not cleared or warehoused etc. within the stipulated period which may be extended, then the person having the custody of such goods has the discretion to sell the goods.
16. Considering the above, we are of the view that a decision has to be taken by the authority under section 46 of the Customs Act. Without such decision being taken, it would not be just and proper to allow the custodian to sell the goods.
17. That being the position, we direct respondent Nos.2 and 3 to take a decision on the prayer of the petitioners for warehousing of the consignments in terms of section 46(1) of the Customs Act after granting due opportunity of hearing to the petitioners. Let such decision be taken within a period of 7 days from the date of receipt of a copy of this order.
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18. Since we have not expressed any opinion on merit, all contentions are kept open. Whatever decision is taken that shall be in the form of a speaking order and duly communicated to the petitioners.
19. Till such decision is taken and communicated, no action shall be taken by the respondents for selling of the goods under section 48 of the Customs Act.
20. With the above directions, both the writ petitions are disposed of. However, there shall be no order as to costs.
21. This order will be digitally signed by the Private Secretary/Personal Assistant of this Court. All concerned will act on production by fax or email of a digitally signed copy of this order.
(ABHAY AHUJA, J.) (UJJAL BHUYAN, J.)
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