2019 (4) TMI 189 - HC - Customs

Release of consignments - Yellow Peas/green peas imported - 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 them where such duty is leviable 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 Waiver of Demurrage and Container Detention Charges - Held that - In the light of Rule 6(1) 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.

Summary

Issues:
- Release of imported cargo of yellow peas and green peas
- Application of notification dated 28.09.2018 by the Director General of Foreign Trade
- Interpretation of relevant judgments by Bombay High Court and Calcutta High Court
- Compliance with conditions for release of cargo
- Waiver of demurrage charges

Issue 1: Release of imported cargo of yellow peas and green peas
The petitioner filed a writ petition seeking a Mandamus to direct the respondents to release the cargo of yellow peas and green peas imported under two bill of entries. The petitioner argued that the bills of lading were dated before the cut-off date set by the court in a previous batch of writ petitions. Despite filing bill of entries, the petitioner was unable to obtain the release of the cargo, leading to the filing of the current petition.

Issue 2: Application of notification dated 28.09.2018
The petitioner imported green peas under a sales contract dated before the notification dated 28.09.2018, which restricted the import of green peas and yellow peas. The petitioner highlighted that a stay was granted on the notification by the court, allowing similarly placed importers to obtain the release of their cargo. The petitioner's bills of lading were dated before the cut-off date, making them eligible for the release of the cargo.

Issue 3: Interpretation of relevant judgments by Bombay High Court and Calcutta High Court
The Standing Counsel referred to judgments by the Bombay High Court and Calcutta High Court, arguing that importers can only seek delivery of cargo if contracts were concluded before the notification date. However, the court noted that the judgments cited were not directly applicable to the case at hand, as they pertained to different goods. The court emphasized the need for a fair and consistent approach towards importers in similar situations.

Issue 4: Compliance with conditions for release of cargo
The court directed the petitioner to comply with specific conditions for the release of the cargo, including remitting the duty component and providing a bank guarantee. Upon satisfaction of these conditions, the cargo of yellow peas and green peas was to be released. The court also considered the petitioner's request for a waiver of demurrage charges in line with relevant regulations.

Issue 5: Waiver of demurrage charges
The court granted the petitioner's request for a waiver of demurrage charges in accordance with Rule 6(1) of the Handling of Cargo in Customs Areas Regulations, 2009. The court emphasized the importance of adhering to legal provisions while releasing detained goods and ensuring fair treatment for importers facing similar circumstances.

In conclusion, the court disposed of the writ petition, directing the respondents to release the cargo of yellow peas and green peas to the petitioner upon fulfilling the specified conditions. The court clarified that previous directions issued in related judgments would also apply to the petitioner, maintaining consistency in the treatment of importers.