1992 (2) TMI 87 - HC - Customs

Summary

Issues Involved:

1. Interpretation of Public Notice No. 238-ITC (PN)/90-91 dated 31-10-1991.
2. Whether the "actual user conditions" were dispensed with for the import of items listed in Appendix 6, List 8, Part I.
3. Detention of goods by Customs Authorities and the requirement for an REP or Additional licence.
4. Liability for demurrage charges due to delayed clearance by Customs Authorities.

Issue-wise Detailed Analysis:

1. Interpretation of Public Notice No. 238-ITC (PN)/90-91 dated 31-10-1991:

The primary issue is the interpretation of Public Notice No. 238-ITC (PN)/90-91 dated 31-10-1991, which modified the Import & Export Policy 1990-93 by dispensing with the "actual user conditions" for the import of raw materials, components, consumables, and spares listed in Appendix 6, List 8, Part I. The petitioner argued that this deletion allowed any person to import the specified items. The Customs Authorities, however, contended that the Public Notice only provided certain relaxations to Actual Users and did not remove the requirement for imports to be made by Actual Users.

2. Dispensation of "Actual User Conditions":

The Court examined the definition of "Actual User" and the conditions under the Import & Export Policy. According to Chapter I, Para 7(1) of the Policy, an "Actual User" is someone who imports items for their own use and not for trade. The first Public Notice explicitly deleted the "Actual User Conditions" for the named items, meaning that the import of these items could be made by all classes of importers, not just Actual Users. The Court rejected the respondents' argument that the concept of Actual Users survived without the condition of actual use, stating that such a distinction was illogical and impractical.

3. Detention of Goods and Requirement for Licence:

The petitioner had entered into an agreement for the import of goods listed in Appendix 6, List 8, Part I, and filed Bills of Entry on 13th January 1992. However, the Customs Authorities did not clear the bills, stating that the petitioner was not an Actual User (Industrial) and required a valid licence. The petitioner argued that the first Public Notice allowed the import without such conditions. The Court held that the Customs Authorities' interpretation was incorrect and that the import of these items was open to all importers due to the deletion of the "Actual User Conditions."

4. Liability for Demurrage Charges:

The petitioner claimed that the wrongful detention of goods by the Customs Authorities resulted in demurrage charges amounting to Rs. 70,000/-. The Court referred to the Supreme Court's judgment in Padam Kumar Agarwalla v. The Additional Collector of Customs, which held that Customs Authorities responsible for wrongful detention should bear the burden of demurrage charges. The Court directed the Customs Authorities to release the Bills of Entry within 48 hours and issue Wharfage Rent Exemption Certificates. If the Port Authorities did not accept these certificates, the Customs Authorities were to reimburse the petitioner for the demurrage charges.

Conclusion:

The Court concluded that the first Public Notice dispensed with the "Actual User Conditions" for the import of specified items, allowing all importers to import these items. The Customs Authorities' detention of the goods was wrongful, and they were liable to compensate the petitioner for the demurrage charges incurred. The writ petition was disposed of with directions for the immediate release of the goods and reimbursement of demurrage charges if necessary.