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2022 (7) TMI 29 - HC - CustomsEntitlement for waiver of rent payable to the respondents - storage of imported consignments of R22 Refrigerant Gas contained in four containers beyond the stipulated period - restricted goods or not - HELD THAT - The petitioner had imported R22 Refrigerant Gas. However, in the Bill of Entry filed for clearance of the aforesaid gas, the petitioner had declared it Refregerant Gas R410A. The Department refused to allow the clearance of imported consignment since the imported consignment was of restricted items in terms of the relevant classifications and the import was without a valid import licence. The petitioner was thus not allowed to clear the imported consignment. The petitioner had earlier filed W.P. in M/S. SHERISHA TECHNOLOGIES PVT. LIMITED, REP. BY ITS DIRECTOR, HAVING ITS CORPORATE OFFICE T. NAGAR, CHENNAI 600 017. VERSUS THE CHIEF COMMISSIONER OF CUSTOMS, CHENNAI CUSTOMS ZONE, CUSTOM HOUSE, CHENNAI, THE DIRECTORATE OF REVENUE INTELLIGENCE (ZONAL UNIT) , MINISTRY OF FINANCE, DEPARTMENT OF REVENUE, CHENNAI 2015 (8) TMI 1552 - MADRAS HIGH COURT for a Mandamus to consider the petitioner's representation dated 29.01.2015. The petitioner had stated that the Chinese supplier supplied the restricted Gas by mistake instead of R410A Refrigerant Gas contrary to purchase order proforma invoice and R22 gas which was to be exported to Panama were wrongly sent to India and therefore that the petitioner may be allowed to re-export the goods to the supplier back in China - The said writ petition came to be disposed of by order dated 24.08.2015 directing the respondent to consider the petitioner's representation on imported consignment in four tanker containers vide four Bills of Entries back to the supplier. The imported consignment after their import into India was stored in the fourth and fifth respondents Container Freight Station. The facts on record clearly indicate that the official respondents have also not co-operated with the petitioner for re-export R22 Refrigerant Gas, despite, the Order in Original No.43805 of 2016 dated 05.01.2016 of the second respondent and the subsequent dismissal of the appeal of the petitioner vide Order in Appeal C.Cus II No.373 374/2016 dated 19.04.2016 - The private respondents namely the fourth and fifth respondents cannot be forced to bear the loss suffered by them on account of storage of R22 Refrigerant Gas imported by the petitioner illegally which was earlier attempted to be cleared contrary to the restriction for the period after Order in Appeal C.Cus II No.373 374/2016 dated 19.04.2016 was passed by the Commissioner of Customs (Appeals-II). The petitioner also cannot be burdened with the demurrage liability for the period thereafter as the goods were not allowed to be re-exported despite the above mentioned orders. Therefore, partial waiver up to 19.10.2015 is liable to be sustained. The demurrages for the period between 19.10.2015 and passing of the Commissioner of Customs (Appeal-II) vide Order in Appeal C.Cus II No.373 374/2016, bearing reference No.C3-II/181 182/O/2016-SEA dated 19.04.2016 will have to be borne by the petitioner, as the petitioner showed no inclination to re-export the consignment. For the period thereafter, the loss caused to the fourth and fifth respondents on account of storage of R22 Refrigerant Gas will have to be borne by the Customs Department. Since the goods are still reportedly in the custody of the fourth and fifth respondents, the official respondents as also the fourth and fifth respondents are directed to permit re-export of the imported consignment by the petitioner to the foreign exporter from China provided the consignment of imported R22 Refrigerant Gas are still there in the containers and have not evaporated due to efflux of time as expeditiously as possible from the date of receipt of a copy of this order, subject to the petitioner paying the demurrage charges to the fourth and fifth respondents for the period between 19.10.2015 up to 19.04.2016 together with applicable interest - the amount is directed to be calculated by the fourth and fifth respondents as expeditiously as possible, preferably, within a period of thirty days from the date of receipt of a copy of this order and suitably intimated to the petitioner. Petition allowed in part.
Issues Involved:
1. Legality of the impugned communication dated 23.12.2016. 2. Entitlement to waiver of rent/demurrage for the period beyond 19.10.2015. 3. Compliance with the Order-in-Original dated 05.01.2016. 4. Responsibility for the storage costs of the imported consignment. 5. Validity of partial waiver granted by the third respondent. Issue-wise Detailed Analysis: 1. Legality of the Impugned Communication dated 23.12.2016: The impugned communication ordered a partial waiver of rent and demurrage for the period between 27.01.2015 to 19.10.2015. The petitioner challenged this communication as illegal, without jurisdiction, and against the provisions of the Act. The court upheld the partial waiver granted by the third respondent, emphasizing that the waiver was in accordance with Regulation 6(1)(l) of the Handling of Cargo in Customs Areas Regulations, 2009. 2. Entitlement to Waiver of Rent/Demurrage for the Period Beyond 19.10.2015: The petitioner argued for a full waiver of rent/demurrage charges beyond 19.10.2015, citing several representations and previous court orders. The court, however, directed that the petitioner is liable for demurrage charges from 19.10.2015 to 19.04.2016, as the petitioner did not show inclination to re-export the consignment during this period. The Customs Department was held responsible for the storage costs beyond 19.04.2016 due to their failure to facilitate re-export despite the existing orders. 3. Compliance with the Order-in-Original dated 05.01.2016: The Order-in-Original dated 05.01.2016, passed by the Additional Commissioner of Customs, concluded that the imported R22 Refrigerant Gas was unauthorized and liable to be confiscated. The petitioner paid the redemption fine and penalties but failed to re-export the goods promptly. The court noted that the petitioner should have been allowed to re-export the goods after paying the fines and penalties on 22.01.2016. 4. Responsibility for the Storage Costs of the Imported Consignment: The court held that the petitioner is responsible for the demurrage charges from 19.10.2015 to 19.04.2016. For the period after 19.04.2016, the Customs Department must bear the storage costs due to their non-cooperation in allowing the re-export of the goods. The court directed the Customs Department to compensate the fourth and fifth respondents (private storage providers) for the storage costs incurred beyond 19.04.2016. 5. Validity of Partial Waiver Granted by the Third Respondent: The court upheld the partial waiver granted by the third respondent, stating that it was in line with the relevant regulations and previous court decisions. The court directed the petitioner to pay the demurrage charges for the specified period and allowed the re-export of the goods, provided the petitioner complies with the terms of the order within the stipulated time. Conclusion: The writ petitions were partly allowed. The court upheld the partial waiver of demurrage charges for the period between 27.01.2015 and 19.10.2015. The petitioner was directed to pay the demurrage charges for the period from 19.10.2015 to 19.04.2016, with the Customs Department bearing the costs thereafter. The petitioner was allowed to re-export the goods upon payment of the specified charges within the given timeframe.
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