2019 (4) TMI 1052 - HC - Customs

Release of Consignments - 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. Release of consignments under specific Bills of Entry.
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 import of consignments of dhalls and peas.
5. Waiver of demurrage charges.

Issue-wise Detailed Analysis:

1. Release of Consignments under Specific Bills of Entry:
The petitioner sought a Mandamus for the release of consignments covered under five Bills of Entry. The court noted that a similar issue had been addressed in a previous order (W.P. No. 4403 of 2019) where the petitioners sought the release of imported 'Peas' and 'Dhall' under Bills of Entry. The court found that the facts and defenses in the present case were uniform with the previous case, where the importers' consignments were detained despite an interim stay on the relevant notifications.

2. Issuance of a Detention Certificate for Waiver of Demurrage and Container Detention Charges:
The petitioners requested the issuance of a Detention Certificate for the waiver of Demurrage and Container Detention charges under Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. The court referenced its earlier order, which concluded that the consignments were detained despite a stay on the notifications. Thus, the court directed the respondents to issue a Detention Certificate for waiving the charges.

3. Relevant Date for Reckoning the Date of Imports: Bill of Lading vs. Bill of Entry:
The court examined whether the date of import should be the Bill of Lading or the Bill of Entry. It referred to Regulation 9.11 of the Foreign Trade Policy, which specifies that the relevant date for import is the date of the Bill of Lading. The court also cited the Supreme Court's judgment in Union of India V. Asian Food Industries, which supported the view that a vested or accrued right cannot be taken away by a policy change. Therefore, the relevant date for imports was determined to be the Bill of Lading.

4. Embargo on Import of Consignments of Dhalls and Peas:
The court noted that the import of peas and dhalls was subject to restrictions under various notifications. For peas, the relevant notifications were issued on 25.04.2018, 02.07.2018, and 28.09.2018, restricting imports during specified periods. For dhalls, the notifications dated 21.08.2017 and 04.05.2018 imposed restrictions. The court found that the imports in question were covered by Bills of Lading drawn between 01.10.2018 and 31.12.2018, during which the operation of the notifications was stayed by the court. Therefore, there was no embargo on the import of these consignments.

5. Waiver of Demurrage Charges:
The petitioner also sought a waiver of demurrage charges incurred due to the detention of consignments. The court referred to Rule 6(l) of the Handling of Cargo in Customs Areas Regulations, 2009, which states that no rent or demurrage should be charged on goods seized, detained, or confiscated by customs officers. Consequently, the court ordered a waiver of demurrage charges for the detained consignments.

Conclusion:
The court directed the petitioner to remit the entire duty component for the consignments where duty is leviable and furnish a bank guarantee for 10% of the invoice value. Upon satisfying these conditions, the consignments should be released. The authorities were allowed to initiate proceedings regarding the transactions, and the petitioner was required to participate in such proceedings. The court also ordered a waiver of demurrage charges and disposed of the Writ Petition accordingly.

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