2015 (12) TMI 1254 - HC - Customs

Auction of goods by the port authorities due to non clearance - Auction done without notice to Assessee - Held that - Any kind of communication or reply, addressed before or after the notice, does not confer any right on the consignee to seek any legal remedy. Therefore, it is more clear that either the goods should have been cleared soon after the publication of the notice or some steps should have been taken legally by the petitioner - When the petitioner and the respondents are in exchange of correspondences in respect of the clearance of the goods, there is no need for any specific notice regarding the clearance of goods. However, in the case on hand, the agent of the petitioner himself had admitted that he was intimated about the disposal of the consignment and the press notice was issued in the English Daily, dated 19.6.2002 and a copy of the same was affixed in the office of the Cargo Terminal, Chennai and therefore, viewed from any angle, the question of non-issuance of notice before the public auction does not arise. Even after paying the customs duty, the petitioner should have been more vigil and strenuous in clearing the goods. - Court does not find that the action of the auctioning the goods of the petitioner suffers from any infirmity. - action of the auctioning the goods of the petitioner suffers from any infirmity - Decided against Assessee.

Summary

Issues Involved:
1. Delay in clearing imported goods.
2. Waiver of demurrage charges.
3. Auctioning of goods without notice.
4. Entitlement to market value and refund of duty.

Detailed Analysis:

1. Delay in clearing imported goods:
The Petitioner, a registered importer, imported 6000 pieces of halogen lamps from Shanghai to Chennai, arriving on 2.2.2002. Due to the misplacement of the delivery order, there was a delay in processing the clearance. The Petitioner filed the Bill of Entry on 2.2.2002, but the clearance was delayed due to an investigation on undervaluation. Despite representations made on 27.3.2002 and 23.5.2002, the goods were not cleared. The Respondents argued that the delay was due to the Petitioner's own actions, including the misplaced delivery order, and that the goods were auctioned after 155 days as per the Customs Act.

2. Waiver of demurrage charges:
The Petitioner sought a waiver of demurrage charges, which was declined by the Airports Authority of India on 14.6.2002, citing no provision in the waiver policy. The Respondents maintained that the Petitioner was advised to clear the goods to avoid further demurrage. The court noted that any cargo not cleared within 5 days is liable for demurrage charges, which are collected at the time of clearance if not cleared within 30 days. The Petitioner's request for waiver was not accommodated due to policy constraints.

3. Auctioning of goods without notice:
The Petitioner claimed that the goods were auctioned without proper notice under Section 48 of the Customs Act. The Respondents countered that a public notice dated 19.6.2002 was issued, calling upon all importers to clear their goods by 31.3.2002, failing which the goods would be auctioned. The court found that the public notice in "The Hindu" and the notice affixed at the Cargo Terminal were sufficient under Section 48, which allows goods to be sold after notice to the importer if not cleared within 30 days. The court also highlighted a letter dated 24.6.2002 from the Petitioner's agent acknowledging the pending disposal of the consignment, which served as notice.

4. Entitlement to market value and refund of duty:
The Petitioner argued that due to the auction of the goods, they were entitled to the market value of the goods and a refund of the duty paid. The court dismissed this claim, stating that the Petitioner had ample notice and opportunity to clear the goods but failed to do so. The court emphasized that the Petitioner's lack of action and vigilance led to the auction, and thus, the Respondents' actions were justified and in accordance with the law.

Conclusion:
The court dismissed the Writ Petition, finding no merit in the Petitioner's claims. The court upheld the Respondents' actions as compliant with the Customs Act and the relevant notifications, and determined that the auctioning of the goods was lawful due to the Petitioner's failure to clear the goods despite adequate notice and opportunity. No costs were awarded.