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2025 (1) TMI 999 - HC - CustomsSeeking to recall the permission granted by them to the respondent No. 3 to proceed with the auction of the Cargo under the bills of lading - direction to hand over the entire sale proceeds of the Cargo to the petitioner unconditionally and free of all lien - Whether the goods were in fact destined for India or there was a mistake in the delivery of goods by the respondent No. 4/Shipper at Nhava Sheva Port so as to entitle the petitioner to claim a mistake by the respondent Nos. 1 and 2 in having custody of the goods and continuing with it and thus entitlement to the auction money? HELD THAT - The definition of the word importer as defined in Section 2 (26) of the Customs Act in relation to any goods at the time between their importation and the time when they are cleared for home consumption indicates that it includes any owner beneficial owner or any person holding himself out to be the importer. This would indicate that the definition is an inclusive one and considering the definition of beneficial owner as defined in Section 2(3-A) of the Customs Act which defines it to mean any person on whose behalf the goods are being imported or exported or who exercises effective control over the goods being imported or exported would further indicate that it would also mean a person who is capable of exercising legal control and possession over the same. The language of the definition of importer nowhere indicates that such importer for the purposes of importing of goods into India has to be an Indian Party. A perusal of the Public Notice No. 33/2018 indicates that it was issued on account of a number of instances where consignments of hazardous waste other waste or restricted items were imported in the name of certain importers and remained uncleared without anyone coming forward to claim the cargo leading to a suspicion that such consignments were imported for dumping hazardous waste from the exporting country which was posing a serious environmental threat. It is in this background that the requirement of details regarding the (a) Import and Export Code (IEC) of the Importer (b) GST identification number (GSTIN) of the importer and (c) Official e-mail id of the importer were directed to be supplied by the importers to their exporters so that they could be included in the Bills of Lading at the time of booking of such consignments which was to be applicable w.e.f. 01/04/2018 - What is material to note is that neither Public 15 Notice No. 33/2018; Public Notice No. 154/2018 nor the pursis referred to above indicate that any penalty has been prescribed for the Bills of Lading and the Import General Manifest not disclosing the (a) Import Export Code (IEC) of the Importer (b) GST identification number (GSTIN) of the importer and (c) Official e-mail id of the importer. If a requirement is claimed to be mandatory then its violation ought to carry consequences which is not the position as is reflected from Public Notice No. 33/2018 Public Notice No. 154/2018 or for that matter the stand of the respondents Nos. 1 and 2 as reflected from the pursis dated 10/12/2024. Till 31/11/2024 the requirement to indicate the name of the consignee as well as to furnish the details of the consignee such as IE Code GSTIN and other requirements as indicated in Public Notice Nos.33/2018 and 154/2018 which now stand culminated in Statutory Regulations vide Regulation No. 4 of the Regulations of 2018 stood postponed on account of the transitional provisions as contained in Regulation 15 (2) of the Regulations of 2018. The provisions of Sections 30 31 and 32 of the Customs Act relating to Arrival or Import manifest therefore have to be construed accordingly - It therefore does not now lie with the petitioner to contend that the goods were never destined for India and the respondent No. 4 ought not to have discharged them at Nhava Sheva India in the custody of the respondent Nos. 1 and 2. The contention is therefore rejected. It is equally trite that since a plea of fraud is being invoked the same would require evidence to be led as disputed questions of fact would be involved and would not permit the invocation of the extraordinary jurisdiction of this Court under Article 226 of the Constitution. In the instant case it is not in dispute that the goods reached ICD Wardha between 17/01/2023 to 09/03/2023 on account of their transshipment from Nhava Sheva India. The obligation of the petitioner who claims title to such goods to get them cleared after following the procedure as prescribed in Sections 45 to 47 of the Customs Act thus accrued on such dates when the goods reached ICD Wardha. The petitioner thus had to get them cleared within a period of 30 days as and when they were unloaded at ICD Wardha - the earlier communication dated 15/05/2024 (pg.212) by the petitioner to the Assistant Commissioner of Customs ICD Wardha in fact indicates its knowledge of the entire set of events which had led to the consignment reaching ICD Wardha and so also its obligation and responsibility to get them cleared as the said communication specifically records the intention of the petitioner to pay the customs duty and clear the consignments. Even if customs duty was not payable on the consignment as is contended still this communication indicates the willingness of the petitioner to clear the consignment which in turn would mandate it to follow the procedure for clearance as indicate in Sections 45 to 49 of the Customs Act. The action of the respondent Nos. 1 and 2 permitting the goods to be auctioned and that of the respondent No. 3 in auctioning the goods in view of the above discussion cannot be faulted with. For the same reasons we also hold that the claim by the petitioner that the custody of the respondent Nos. 1 to 3 was invalid is incorrect as a result of which the plea by the petitioner that the deductions as contemplated by Section 150 (2) of the Customs Act are not attracted or applicable is turned down. Conclusion - The primary responsibility for payment of the rent/demurrage charges is that of the importer who obviously would be the person claiming title to the goods which in the present matter is the petitioner. There are no merit in the petition. The writ petition is dismissed. 1. ISSUES PRESENTED and CONSIDERED The core legal issues considered in this judgment include:
2. ISSUE-WISE DETAILED ANALYSIS Issue 1: Mistaken Delivery and Entitlement to Auction Money Relevant Legal Framework and Precedents: The Customs Act, 1962, particularly Sections 45, 46, 47, and 48, outlines the procedures for the importation, custody, and clearance of goods. The definition of "importer" under Section 2(26) and the requirements for an Indian consignee were central to this issue. Court's Interpretation and Reasoning: The court examined the sales contract and related documents, which indicated that the goods were indeed destined for India, specifically Wardha. The court found that the petitioner's claim of a mistake was unfounded, as the documentation consistently showed India as the destination. Key Evidence and Findings: The sales contract, bills of lading, and communication between the parties demonstrated that the goods were intended for India. The court noted the petitioner's awareness of the destination and the lack of evidence supporting a mistake claim. Application of Law to Facts: The court applied the definitions and procedures outlined in the Customs Act, concluding that the goods were lawfully imported and the petitioner's claims of mistake were without merit. Treatment of Competing Arguments: The court rejected the petitioner's arguments regarding the absence of an Indian consignee and the alleged mistake in delivery, emphasizing the documentary evidence to the contrary. Conclusions: The court concluded that the goods were correctly delivered to India and the petitioner was not entitled to claim a mistake or the auction money based on the alleged error. Issue 2: Enforcement of Public Notices and Regulations Relevant Legal Framework and Precedents: Public Notices No. 33/2018 and 154/2018, along with the Sea Cargo Manifest and Transhipment Regulations, 2018, were examined to determine their applicability and enforcement. Court's Interpretation and Reasoning: The court noted that while the public notices and regulations aimed to ensure accurate documentation, they did not carry statutory penalties for non-compliance. The transitional provisions allowed for flexibility in implementation. Key Evidence and Findings: The court found no evidence that the absence of an Indian consignee in the documentation was a mandatory requirement at the time of import. Application of Law to Facts: The court concluded that the public notices and regulations did not mandate the presence of an Indian consignee for the importation of goods, and their non-compliance did not invalidate the import process. Treatment of Competing Arguments: The court addressed the petitioner's reliance on the public notices, clarifying that they did not have the force of law to prevent the unloading of goods without an Indian consignee. Conclusions: The court held that the public notices and regulations did not impose mandatory requirements that were violated in this case, and the importation process was valid. Issue 3: Legality of the Auction Relevant Legal Framework and Precedents: Sections 48 and 150 of the Customs Act, 1962, govern the auction of unclaimed goods and the procedure for such sales. Court's Interpretation and Reasoning: The court examined the auction process, including the issuance of notices and the permission granted by the customs authorities. It found that the necessary procedures were followed. Key Evidence and Findings: The court noted that the petitioner was informed of the auction and had opportunities to clear the goods, which it failed to do. Application of Law to Facts: The court applied the statutory requirements for auctioning unclaimed goods, concluding that the auction was conducted lawfully. Treatment of Competing Arguments: The court rejected the petitioner's claims of inadequate notice and improper auction procedures, citing evidence of compliance with legal requirements. Conclusions: The court upheld the legality of the auction, finding no procedural violations or grounds for cancellation. 3. SIGNIFICANT HOLDINGS Preserve verbatim quotes of crucial legal reasoning: "The primary responsibility for payment of the rent/demurrage charges is that of the importer, who obviously would be the person claiming title to the goods, which in the present matter is the petitioner." Core Principles Established: The court reaffirmed the responsibilities of importers under the Customs Act and clarified the non-mandatory nature of certain public notice requirements. Final Determinations on Each Issue: The court dismissed the petition, ruling against the petitioner on all issues and upholding the actions of the customs authorities and the legality of the auction. This summary provides a comprehensive analysis of the judgment, focusing on the key issues, legal reasoning, and conclusions reached by the court.
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