2022 (8) TMI 1207 - HC - Customs

Seeking grant of waiver of the rent/demurrage/other charges for the period for which the goods were detained by Respondent No.2 - Respondent No.3 who despite being given sufficient opportunity have chosen not to file affidavit in reply - HELD THAT - Respondent No.3 are directed to consider the certificate dated 11th September 2018 (Exhibit H to the petition) as the proper waiver certificate issued by Respondent No.2. As undertaken by Mr. Shroff, the excess amount which petitioner says is Rs.19,02,455/- recovered from petitioner (for the period 5th November 2015 to 29th August 2018 less for the period 10th February 2016 to 13th April 2018) shall be returned to petitioner within four weeks from the date this order is uploaded. The petitioner should also be paid interest on the amount refunded at 9% p.a. from the date the amount was paid until the amount is refunded. Respondent No.2 also consider if any action is required to be taken against Respondent No.3 in view of the Public Notice No.26/2010. Petition disposed off.

Issues:
1. Confiscation of goods under Customs Act, 1962
2. Appeal process before Commissioner (Appeals) and CESTAT
3. Waiver of detention and demurrage charges
4. Compliance with Public Notice No.26/2010
5. Refusal to grant waiver by Respondent No.3
6. Lack of response and high-handed behavior by Respondent No.3
7. Court's directions for refund and payment of interest
8. Consideration of action against Respondent No.3

Confiscation of Goods under Customs Act, 1962:
The petitioner imported a consignment of Pistachio Kernels Oil Stock Feed Grade, detained by the Department of Customs, leading to an investigation. The Customs department passed an order confiscating the goods under Sections 111(m) and 111(d) of the Customs Act, 1962, imposing a penalty. The petitioner appealed to the Commissioner (Appeals) and later to CESTAT, which set aside the Commissioner's order.

Waiver of Detention and Demurrage Charges:
The petitioner sought a waiver of detention and demurrage charges as per Public Notice No.26/2010, submitting a detention waiver certificate. Despite this, Respondent No.3 did not grant the waiver for the period the goods were detained, leading to a dispute.

Compliance with Public Notice No.26/2010:
The Public Notice specified that no charges should be levied if goods are detained without fault of the importer, with a prescribed format for a detention waiver certificate. The petitioner alleged that Respondent No.3 did not comply with this notice.

Refusal to Grant Waiver by Respondent No.3:
Respondent No.3 refused to waive demurrage and detention charges for the entire period requested by the petitioner, only granting it for a limited period, leading to dissatisfaction and further legal action.

Lack of Response and High-Handed Behavior by Respondent No.3:
Despite opportunities, Respondent No.3 did not file a reply or provide reasons for refusal, displaying high-handed behavior. The court criticized this conduct and directed Respondent No.3 to refund the excess amount to the petitioner.

Court's Directions for Refund and Payment of Interest:
The court directed Respondent No.3 to consider a specific waiver certificate issued by Respondent No.2 and refund the excess amount to the petitioner within a specified timeframe, with interest payable on the refunded amount.

Consideration of Action Against Respondent No.3:
The court directed Respondent No.2 to assess if any action is necessary against Respondent No.3 in light of the non-compliance with the Public Notice. The petition was disposed of with costs, with Respondent No.3 ordered to pay a sum as costs to the petitioner in addition to the refund amount.

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