2018 (11) TMI 1579 - HC - Customs

Validity of communication dated 16.11.2018 of the Superintendent of Customs, Old Tuna Port - Held that - The Superintendent of Customs has informed the petitioner that his office has received certain representations raising the issues mentioned therein and that such issue is under consideration of the Customs House, Kandla and that after consideration of the same, a decision will be taken in the matter. Thus, the shipping bill of the petitioner has been kept on hold till the Customs House, Kandla, takes a decision on the representations received by its office. Though the said communication is expressly subject matter of challenge in the present petition, the learned advocate for the respondent No.3 is not in a position to point out as to which statutory requirement the petitioner is required to satisfy and which in fact has not been satisfied by the petitioner. All that is stated is that various representations have been received and that in the light of such representations, it is possible that the provisions of certain laws have not been followed. In the opinion of this court, if there is breach of any provision other than the provisions of the Customs Act and the Import Export Policy, it is for the concerned authorities under those Acts to take action in respect of such breach. It is an admitted position that this is not a case of confiscation of goods, but a case where the shipping bill is not being processed on account of representations made by some third parties. Reliance placed upon the provisions of clause (d) of section 113 of the Act is therefore, thoroughly misconceived and deserves to be stated only to be rejected. In the absence of non compliance of any statutory provision, the respondent No.3 is not justified in keeping on hold the shipping bill of the petitioner. The representations received by the respondent No.3 being extraneous to the provisions of the Customs Act, ought not to have deterred him from performing his duties in accordance with law - impugned communication dated 16.11.2018 whereby the shipping bill of the petitioner has been kept on hold, therefore, cannot be sustained - petition allowed - decided in favor of petitioner.

Summary

Issues Involved:
1. Validity of the query memo dated 13.11.2018.
2. Validity of the communication dated 16.11.2018 which put the shipping bill on hold.
3. Compliance with statutory provisions and other laws.

Detailed Analysis:

1. Validity of the Query Memo Dated 13.11.2018:
The petitioner complied with the query memo dated 13.11.2018 issued by the Superintendent of Customs, Old Tuna Port, which requested specific documents and information. Since the petitioner has already complied with the memo, the challenge to this query memo no longer survives.

2. Validity of the Communication Dated 16.11.2018:
The communication dated 16.11.2018 from the Superintendent of Customs, Old Tuna Port, informed the petitioner that the shipping bill No. 106/2018-19 dated 13.11.2018 was put on hold due to certain representations received. These representations raised issues about the applicability of various guidelines and standards, including the BIS 14904:2007, Terrestrial Animal Health Code by OIE, quarantine procedures, and fitness certificates from the Veterinary Officer. The court noted that the customs authorities are governed by the Customs Act and the Import Export Policy and should act within the confines of these laws. The Superintendent of Customs could not keep the shipping bill on hold based merely on representations from third parties without pointing out any specific statutory non-compliance by the petitioner.

3. Compliance with Statutory Provisions and Other Laws:
The petitioner argued that they had complied with all necessary statutory provisions for exporting livestock and that there were no restrictions imposed by the Central Government. The respondents, however, could not pinpoint any specific statutory requirement that the petitioner had failed to meet. The court emphasized that if there was a breach of any provision other than the Customs Act and the Import Export Policy, the concerned authorities under those Acts should take action. The customs authorities should not delay processing the shipping bill based on external representations.

Conclusion:
The court concluded that the communication dated 16.11.2018, which kept the shipping bill on hold, was unjustified and could not be sustained. The petition was allowed, and the impugned communication was quashed and set aside. The customs authorities were directed to process the shipping bill in accordance with the law without further delay. The applications by the Animal Welfare Foundation and Akhil Bharat Krishi Go Seva Sangh to be impleaded as parties were rejected, as the petition was not a public interest litigation, and they were not willing to bear the costs for the demurrages and maintenance of the livestock. Rule was made absolute with no order as to costs, and direct service was permitted.