2022 (4) TMI 1045 - HC - Customs

Direction to destuff the cargo from the containers and return the empty containers to the writ applicant - containers filled with cargo declared to be fuel oil in specialized containers referred to as flexi bags - HELD THAT - This Court finds that considering the nature of hazardous substance lying in the subject containers, it would be appropriate to direct the respondent customs authorities to complete the proceedings as regards the misdeclaration of the imported goods followed by the confiscation order, if any, within a period of 30 days from the date of receipt of this order. It is made clear and as assured by the learned Senior Standing Counsel appearing for the Customs authorities that if no such order is passed within a period of 30 days, the respondent authorities including respondent no.3 herein shall proceed to de-stuff the cargo into any other suitable containers. The respondent authorities including respondent no.3 are at liberty to even auction the imported cargo as proposed in the final notice issued by the respondent no.3 herein under Section 48 of the Act and at the same time, hand over the custody of the empty subject containers to the writ applicant within 15 days thereafter. Present application disposed off.

Summary

Issues:
- Extra-ordinary writ jurisdiction under Article 226 for mandamus to destuff cargo and return containers.
- Failure of respondent to clear cargo leading to financial loss for the applicant.
- Application of Section 48 of the Customs Act, 1962 for unclaimed cargo.
- Dispute over hazardous nature and misdeclaration of imported goods.
- Proposal for show cause notice and confiscation order under Section 111 of the Act.

Analysis:

Issue 1: The writ applicant sought a writ of mandamus under Article 226 to direct the respondents to destuff cargo from containers and return them. The applicant, engaged in freight business, faced financial losses due to the respondent's inaction in clearing cargo, leading to a blockage of containers since 03.04.2020. The applicant relied on Section 48 of the Customs Act, 1962, emphasizing the authorities' obligation to act if cargo remains uncleared for 30 days. The Circular No.49/2018-Customs was also cited, outlining procedures for disposal of unclaimed cargo.

Issue 2: The respondent contended that the cargo, declared as "fuel oil," was hazardous and in liquid form, requiring caution for storage. Notices under Section 48 were issued to the original importer, urging clearance to avoid auction. The respondent highlighted the financial liabilities accrued due to the inaction of the importer, amounting to ?2,51,99,983. The respondent argued against destuffing due to safety concerns and the hazardous nature of the cargo.

Issue 3: The Senior Standing Counsel for the respondents acknowledged the blockage of containers since 03.04.2020 but raised concerns over the misdeclaration and hazardous nature of the imported goods. The proposal to issue a show cause notice under Section 111 of the Act for confiscation of misdeclared goods was presented, with an assurance to expedite proceedings within 30 days. If no orders were passed, the respondents were to de-stuff cargo into suitable containers or auction it, releasing the containers to the applicant within 15 days.

Issue 4: The Court directed the customs authorities to complete proceedings regarding the misdeclaration of imported goods within 30 days, followed by a confiscation order if necessary. Failure to comply would result in de-stuffing the cargo into suitable containers or auctioning it, with the empty containers to be returned to the applicant within 15 days. The Court emphasized that it did not delve into the merits of the matter, allowing parties to seek redress if needed.