2019 (9) TMI 410 - HC - Customs

Validity of the approach of the the revenue officers to wait till the last day of the period of limitation and to decide whether to file an appeal or not at the last moment - Non-implementation or non-compliance of Ext.P11 final order - direction to respondent to issue detention certificate as per Regulation 6(1) of Handling of Cargo in Customs Area Regulation 2009 - waiver of demurrage charges from the Warehouse Corporation - suitable compensation for the alleged loss and damage suffered by the petitioner on account of depreciation value of subject goods and detaining the goods for unreasonable long period - defence of respondent is that there cannot be a direction to release or comply Ext.P11 final order before the period available for statutory remedy of appeal expires. HELD THAT - This Court is constrained to observe that the respondent is not justified in waiting till the last date of limitation for filing appeal and then proceed to decide whether Ext.P11 could be implemented or not. The respondent is dealing with goods imported by petitioner. For the petitioner and its customers the goods imported is a simple commercial transaction. The law enables petitioner to lawfully sell the imported goods only upon obtaining customs clearance and payment of applicable duties to respondents. The approach of respondent that it can wait up to the expiry of 180th day is untenable and, accordingly, the limited objection raised by the respondent is not appreciated. It shall not be understood that by implication the Court is preventing the respondent from working out the statutory remedies available to respondent. The respondent is directed to implement Ext.P11 judgment within four weeks from today, unless and until the judgment in Ext.P11 is stayed or suspended by Court of competent jurisdiction - The respondent while ordering release of goods in terms of Ext.P11 final order, along with the release order issues a certificate of detention in favour of petitioner - application disposed off.

Summary

Issues:
Petitioner seeks mandamus for non-implementation of final order, waiver of demurrage charges, and compensation for loss. Respondent ordered confiscation of imported goods as prohibited, imposed penalty. Tribunal ordered redemption fine and penalty, rejected separate penalty on proprietors. Petitioner argues final order is binding, seeks release of goods. Respondent claims right to appeal not exhausted, opposes immediate compliance with final order.

Analysis:

Writ Petition (C) No. 17553 of 2019:
- Issue 1: Non-implementation of Final Order
- Petitioner seeks mandamus for non-implementation of Ext.P11 final order, declaring it illegal and unconstitutional. The order dealt with the confiscation of Multifunctional Digital Photocopiers and Printers (MFD) as prohibited goods.
- Appellate Tribunal ordered the redemption fine and penalty based on the value of the imported goods, allowing clearance on payment of these charges along with customs duty.
- Petitioner argues that similar cases have been decided in favor of traders importing MFDs, establishing a precedent for release based on Tribunal decisions.
- Respondent did not file an appeal against Ext.P11, but claims the right to appeal under the Customs Act, arguing that the appeal period is not over yet.

- Issue 2: Waiver of Demurrage Charges
- Petitioner also requests a waiver of demurrage charges on the imported goods, emphasizing the need for prompt clearance following the final order.
- The Tribunal's order directs the jurisdictional Commissioner of Customs to consider the request for demurrage waiver under Rule 6(1) of the Handling of Cargo in Customs Area Rules, 2009.

- Issue 3: Compensation for Loss
- As an alternative relief, petitioner seeks compensation for alleged loss and damage due to the depreciation of goods and unreasonable detention.
- The petitioner contends that the respondent's delay in releasing the goods, despite the final order, is arbitrary, illegal, and unconstitutional.

Judgment:
- The Court directs the respondent to implement the Ext.P11 judgment within four weeks, unless stayed by a competent court.
- Upon release of goods, the respondent must issue a certificate of detention to the petitioner for demurrage waiver purposes only.
- Other reliefs sought by the petitioner are not considered at present, allowing both parties to exercise their rights under the Customs Act.

Writ Petitions (C) No. 17556 and 17865 of 2019:
- These petitions are disposed of in the same terms as W.P.(C) No. 17553 of 2019, based on the common issues and circumstances presented in the lead petition.

This analysis highlights the legal complexities surrounding the implementation of final orders, the right to appeal, and the need for a balanced approach in resolving disputes between parties involved in customs matters.