2019 (3) TMI 1452 - HC - Customs

Rrelease of consignments - Toor whole - issuance of Detention Certificate for waiver of Demurrage and Container Detention Charges in terms of Handling of Cargo in Customs Areas Regulations 2009 - Held that - The identical issue as arising in these Writ Petitions has been considered in the case of M/s.Royal Impex V. Commissioner of Customs 2019 (3) TMI 312 - MADRAS HIGH COURT , where it was held that Prohibition promulgated by a statutory order in terms of Section 5 read with the relevant provisions of the policy decision in the light of Sub-section (2) of Section 3 of the 1992 Act can only have a prospective effect. By reason of a policy, a vested or accrued right cannot be taken away. Such a right, therefore, cannot a fortiori be taken away by an amendment thereof. The petitioner 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 petitioner shall furnish a bank guarantee for the 10% of the invoice value. Upon satisfaction of the aforesaid conditions, the consignments shall be released forthwith - The petitioner has also prayed for waiver of demurrage charges incurred in respect of the detained consignments. 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. Mandamus for the release of consignments.
2. Issuance of a 'Detention Certificate' for waiver of Demurrage and Container Detention Charges.
3. Relevant date for reckoning the date of imports (Bill of Lading vs. Bill of Entry).
4. Embargo on the import of consignments of dhalls.
5. Embargo on the import of consignments of peas.

Detailed Analysis:

1. Mandamus for the Release of Consignments:
The petitioner sought a Mandamus for the release of consignments of "Toor whole" imported through ARVEE International Private Limited, Singapore. The consignments were covered under specific invoices and bills of lading. The court noted that a similar issue had been addressed in a previous order dated 27.02.2019 in W.P. No. 4403 of 2019 (batch), where the court had directed the release of consignments of 'Peas' and 'Dhall' imported by the petitioners. The court held that the conclusions from the earlier order would apply to the present case as well.

2. Issuance of a 'Detention Certificate' for Waiver of Demurrage and Container Detention Charges:
The petitioners also sought a direction for the issuance of a 'Detention Certificate' for the waiver of Demurrage and Container Detention Charges. The court referred to Rule 6(l) of the Handling of Cargo in Customs Areas Regulations, 2009, which provides that the Customs Cargo Provider shall not charge any rent or demurrage on goods seized, detained, or confiscated by customs authorities. Consequently, the court ordered a waiver of demurrage charges.

3. Relevant Date for Reckoning the Date of Imports (Bill of Lading vs. Bill of Entry):
The court considered whether the relevant date for reckoning the date of imports would be the date of the Bill of Lading or the Bill of Entry. Regulation 9.11 of the Foreign Trade Policy specifies that the relevant date for imports is the date of the Bill of Lading. The court emphasized that the Foreign Trade Policy is a complete code by itself, and thus, the reference to section 15 of the Customs Act by the Revenue, which fixes the date for determination of duty and tariff as the date of the Bill of Entry, was not relevant. The court upheld the date of the Bill of Lading as the relevant date for imports.

4. Embargo on the Import of Consignments of Dhalls:
The court noted that the import of dhalls was subject to restrictions under notifications issued by the respondents. However, the operation of these notifications had been stayed by earlier orders of the court. Therefore, there was no embargo on the import of consignments of dhalls covered by the stay orders.

5. Embargo on the Import of Consignments of Peas:
The court observed that the import of peas was restricted by notifications issued from April 2018 onwards. The petitioners argued that their transactions had crystallized before the relevant notifications, and similar consignments had been cleared by customs authorities. The court held that the relevant date for imports was the date of the Bill of Lading, and since the stay of operation of the relevant notifications was in force at the time of import, the consignments were liable to be released conditionally.

Conclusion and Orders:
The court concluded that the consignments in question were liable to be released upon the petitioner remitting the entire duty component and furnishing a bank guarantee for 10% of the invoice value. The authorities were allowed to initiate proceedings concerning the transactions, and the petitioner was required to participate in such proceedings. The court also ordered a waiver of demurrage charges as per the Handling of Cargo in Customs Areas Regulations, 2009. The Writ Petition was disposed of in these terms, and the connected Miscellaneous Petition was closed with no costs.

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