1991 (1) TMI 147 - HC - Customs

Summary

Issues Involved:
1. Whether the goods consigned to the 4th respondent were imported or attempted to be imported.
2. Whether the petitioner-firm is liable under Section 116 of the Customs Act for not unloading the goods.
3. Whether the petitioner-firm can be permitted to re-export the goods without paying duty, fine, or penalty.
4. The applicability of Section 111(d) of the Customs Act in this case.

Issue-wise Detailed Analysis:

1. Whether the goods consigned to the 4th respondent were imported or attempted to be imported:

The petitioner-firm, acting as the Constituted Attorney of M/s. West Yong Traders, shipped 249 drums of metallurgical grade silicon and other goods to the 4th respondent by mistake. Upon realizing the error, the petitioner sent urgent messages to prevent the unloading of the goods at Madras Port. The vessel did not discharge the disputed goods and left for Colombo. The respondents suspected smuggling but found only licit goods upon examination. The court noted that the goods were not intended to be imported, supported by the 4th respondent's affidavit and the petitioner's immediate corrective actions. The court emphasized that the goods were not brought within Indian territorial waters for the purpose of being imported.

2. Whether the petitioner-firm is liable under Section 116 of the Customs Act for not unloading the goods:

Respondents 1 to 3 argued that the failure to unload the goods in India attracted penalties under Section 116 of the Customs Act. However, the court clarified that Section 116 targets the person in charge of the conveyance, not the petitioner-firm. The petitioner was not responsible for the conveyance and had no control over the shipping agents. Therefore, Section 116 could not be invoked against the petitioner-firm.

3. Whether the petitioner-firm can be permitted to re-export the goods without paying duty, fine, or penalty:

The petitioner sought a writ of mandamus to allow re-export of the goods without duty, fine, or penalty. The court considered precedents, including judgments from the Delhi High Court and CEGAT, which dealt with similar issues but were not directly applicable. The court concluded that the petitioner had no intention to import the goods, as evidenced by the immediate corrective actions and lack of any document filed by the 4th respondent to clear the goods. The court directed respondents 1 to 3 to permit re-export upon the petitioner-firm filing an undertaking and personal bond.

4. The applicability of Section 111(d) of the Customs Act in this case:

Respondents 1 to 3 contended that the goods were liable for confiscation under Section 111(d) due to misdeclaration in the Import General Manifest. The court found that the ingredients of Section 111(d) were not present, as there was no intention to import the goods. The goods were not brought into Indian waters for importation, and the counter affidavit confirmed no contraband or prohibited items were found. The court held that any action under Section 111(d) should be directed at the person responsible for the conveyance, not the petitioner-firm.

Conclusion:

The writ petition was allowed, directing respondents 1 to 3 to permit the re-export of the goods after the petitioner-firm filed the required undertaking and personal bond. The court preserved the respondents' right to take action against the appropriate parties but found no basis to penalize the petitioner-firm under the cited sections of the Customs Act. No order as to costs was made.