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2019 (2) TMI 1682 - HC - CustomsRelease of imported Consignments - Peas and Dhall - restricted item or not - issue of Detention Certificate for waiver of Demurrage and Container Detention Charges - Regulation 6(1)(l) of Handling of Cargo in Customs Areas Regulations 2009 - validity of Notification Nos.04/2015-20 dated 25.04.2018, 15/2015-2020 dated 02.07.2018, 19/2015-20 dated 05.08.2017, 22/2015-20 dated 21.08.2017, 06/2015-20 dated 04.05.2018 and 37/2015-20 dated 28.09.2018. - Whether the relevant date for the reckoning the date of the imports would be the date of Bill of Lading or Bill of Entry; - Whether there is any embargo on the import of the consignments of dhalls in the present cases; - Whether there is any embargo on the import of the consignments of peas imported during 01.10.2018 and 31.12.2018 and covered by Bills of Lading for the aforesaid period. HELD THAT - Supreme Court in case of Union of India V. Asian Food Industries 2006 (11) TMI 10 - SUPREME COURT hold that a vested or accrued right cannot be taken away by reason of a policy, accordingly, the relevant date for reckoning the import of the consignments of peas is the date of Bill of Lading. The grant of stay of operation of the relevant Notifications and the pendency of the said stay as on the date of import is admitted. Thus, and in conclusion, on the basis of the admitted position on facts and bearing in mind the balance of convenience in the present case, the consignments in question are liable to be released, though conditionally - The petitioners will remit the entire duty component of the consignments imported by them in cases were such duty is leviable as per paragraph 15(iii) above along with a bank guarantee for the 10% of the invoice value. In cases where the duty impact is neutral, the petitioners shall furnish a bank guarantee for the 10% of the invoice value. Upon satisfaction of the aforesaid conditions, the consignments shall be released forthwith. Waiver of demurrage charges incurred in respect of the detained consignments - Regulation 6(1)(l) of Handling of Cargo in Customs Areas Regulations 2009 - HELD THAT - In the light of Rule 6(l) of the Handling of Cargo in Customs Areas Regulations, 2009, which provides that the Customs Cargo Provider shall not, subject to any other law for the time being in force, charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or examining officer, as the case may be, there shall be a waiver of demurrage charges. Petition disposed off.
Issues Involved:
1. Issuance of writ of mandamus for release of consignments. 2. Issuance of 'Detention Certificate' for waiver of Demurrage and Container Detention Charges. 3. Determination of relevant date for reckoning the date of import. 4. Embargo on import of consignments of dhalls and peas. 5. Validity of the Notifications restricting imports. Detailed Analysis: 1. Issuance of writ of mandamus for release of consignments: Sixty-six petitioners sought a writ of mandamus directing the respondents to release consignments of 'Peas' and 'Dhall' imported under Bills of Entry, in compliance with earlier court orders. They also requested a 'Detention Certificate' for waiver of Demurrage and Container Detention Charges as per Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations 2009. The court noted that the petitioners' imports were covered by interim stays granted by the court, which were in effect at the time of import. 2. Issuance of 'Detention Certificate' for waiver of Demurrage and Container Detention Charges: The petitioners argued that they were entitled to a waiver of demurrage charges under Rule 6(l) of the Handling of Cargo in Customs Areas Regulations, 2009. The court agreed, citing that the Customs Cargo Provider should not charge rent or demurrage on goods seized or detained by customs officers. Consequently, the court ordered a waiver of demurrage charges. 3. Determination of relevant date for reckoning the date of import: The court had to decide whether the relevant date for import was the date of the Bill of Lading or the Bill of Entry. Regulation 9.11 of the Foreign Trade Policy specifies that the date of the Bill of Lading is the relevant date for reckoning the date of import. The court upheld this, stating that the Foreign Trade Policy is a complete code by itself, and references to section 15 of the Customs Act, which considers the date of Bill of Entry for duty and tariff purposes, were not relevant in this context. 4. Embargo on import of consignments of dhalls and peas: The import of peas and dhalls was subject to restrictions imposed by various notifications. The court noted that the imports in question were covered by interim stays of these notifications. Specifically, for peas, the notifications dated 25.04.2018, 02.07.2018, and 28.09.2018 restricted imports, but the court had stayed these notifications. For dhalls, similar restrictions were placed by notifications dated 21.08.2017 and 04.05.2018, which were also stayed by the court. The court concluded that the imports were valid as they were covered by stays of the restrictive notifications. 5. Validity of the Notifications restricting imports: The court refrained from commenting on the merits of the notifications themselves, as they were pending before another judge. However, the court noted that the stay of the notifications was in effect at the time of import, thus allowing the release of the consignments. The petitioners referenced several Supreme Court judgments, including Union of India V. Asian Food Industries and Priyanka Overseas Private Ltd. V. Union of India, which supported their position that vested rights cannot be taken away by policy changes. Conclusion: The court ordered the release of the consignments upon the petitioners remitting the duty component and furnishing a bank guarantee for 10% of the invoice value. The authorities were permitted to initiate proceedings regarding the transactions, and the petitioners were required to participate in these proceedings. The court also granted a waiver of demurrage charges for the detained consignments. The writ petitions were disposed of accordingly, and connected miscellaneous petitions were closed without costs.
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