2019 (3) TMI 1534 - HC - Customs

Release of consignments - Yellow Peas imported by the petitioner s Proprietor Firm - issuance of Detention Certificate for waiver of Demurrage and Container Detention Charges in terms of Regulation 6(1)(1) of Handling of Cargo in Customs Areas Regulations 2008 - Held that - The petitioner will remit the entire duty component of the consignments imported by him in case 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 consignment shall be released forthwith. Waiver of Demurrage and Container Detention Charges - 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. Mandamus for the release of consignments.
2. Issuance of a 'Detention Certificate' for waiver of Demurrage and Container Detention Charges.
3. Determination of the relevant date for reckoning the date of imports.
4. Embargo on the import of consignments of dhalls.
5. Embargo on the import of consignments of peas.

Issue-wise Detailed Analysis:

1. Mandamus for the release of consignments:
The petitioner sought a Mandamus for the release of consignments under Bill of Entry No.9599343 dated 11.01.2019, in line with previous court orders. The court referenced a similar case (M/s. Royal Impex v. Commissioner of Customs) where a writ of mandamus was issued for the release of imported 'Peas' and 'Dhall' consignments. The court noted that the facts and legal positions in the current case were identical to the previous case, thus warranting a similar order for the release of the consignments.

2. Issuance of a 'Detention Certificate' for waiver of Demurrage and Container Detention Charges:
The petitioner also sought a direction for the issuance of a 'Detention Certificate' to waive Demurrage and Container Detention Charges under Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations 2009. The court reiterated its earlier stance that the Customs Cargo Provider should not charge any rent or demurrage on goods seized, detained, or confiscated by customs officials. Therefore, a waiver of demurrage charges was granted.

3. Determination of the relevant date for reckoning the date of imports:
The court examined whether the relevant date for reckoning the date of imports was the date of Bill of Lading or Bill of Entry. Regulation 9.11 of the Foreign Trade Policy specifies that the relevant date is the date of the Bill of Lading. The court held that the Foreign Trade Policy, being a complete code, takes precedence over Section 15 of the Customs Act, which considers the date of Bill of Entry for determining duty rates and tariff valuation. The court cited the Supreme Court's decisions in Union of India v. Asian Food Industries and Priyanka Overseas Private Ltd. v. Union of India, affirming that the date of Bill of Lading is the relevant date for import transactions.

4. Embargo on the import of consignments of dhalls:
The court noted that the import of dhalls was subject to restrictions under Notifications No.22/2015-2020 dated 21.08.2017 and No.06/2015-2020 dated 04.05.2018. However, these notifications had been stayed by the court's orders dated 31.08.2018. Since the stay was in force at the time of import, there was no embargo on the import of dhalls.

5. Embargo on the import of consignments of peas:
The import of peas was restricted by several notifications issued from April 2018 onwards. The court noted that similar consignments shipped during the relevant period were cleared by customs authorities despite the notifications. The court emphasized that the stay of operation of the notifications was in force during the import period, making the detention of the consignments illegal. The court concluded that the consignments of peas covered by Bills of Lading between 01.10.2018 and 31.12.2018 should be released.

Conclusion:
The court ordered the release of the consignments 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 regarding the transactions, and the petitioner was required to participate in such proceedings. The waiver of demurrage charges was granted in accordance with Rule 6(l) of the Handling of Cargo in Customs Areas Regulations, 2009. The writ petition was disposed of with the aforementioned terms.

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