2023 (8) TMI 756 - HC - Customs

Seeking directions on the respondent-Authorities to permit the vessel to sail out of the Haldia Anchorage for discharging cargo at Tuticorin, another destination - perishable goods - Customs Authorities have raised any claim against the petitioner to justify the withholding of permission to the petitioner s vessel to leave the Haldia Dock Complex or not - HELD THAT - The refusal to grant permission to the petitioner to leave the Sandheads of Haldia and/or the anchorage of the Haldia Dock Complex are entirely misplaced and de hors the law. It is required to be mentioned here that Section 30 of the Act empowers the issuance of Import Manifest. Although there is no specific provision in the Act for cancellation of the same, it is well-settled that in the absence of power of cancellation having been vested in the authorities, the same has to be read into the powers of the issuing authority. The delivery of import manifest or import report and issuance of the same, since it takes place under Section 30, the power of cancellation of the same under appropriate conditions has to be read into the said Section as well - The Bills of Entry are to be proceeded on by the importer. Since they themselves gave no objections permitting the cargo to be sold elsewhere, thus giving a go-bye to the goods being imported through Haldia, there is no bar to the Bills of Entry elapsing or being cancelled. Since there is no other allegation of any violation of law or any claims of dues or charges made by the Customs Authorities till date against the petitioner, and as the shipping agent and all importers have been impleaded in the present writ petition and have issued their consent by way of no objections , there cannot be any further impediment of releasing the vessel of the petitioner. In the present case, in any event, the Customs officials have not claimed any import duty from the petitioner till date. The ground of refusal was mere pendency of certain Bills of entry which have been waived by the importers themselves, by way of their no objections - In the present case, it is undisputed that the goods have not been put into the course of home consumption or warehousing and are still on board the petitioner s vessel. Hence, the status of the goods is admitted. The no objections given by the importers have also not been challenged, despite service of notice of the writ petition on the importers. Hence, it cannot be argued that the said Clause overrides the provisions of the Customs Act, 1962 itself or creates any embargo on the petitioner to remove its vessel from the Haldia Dock Anchorage. The respondent nos. 2 to 5 are directed to take immediate steps for issuing necessary permit for the petitioner s vessel M.V. Dariya Ganga to sail out of the Haldia Anchorage for her present location, that is, the Tuticorin Port or elsewhere - petition allowed.

Issues Involved:
1. Withholding of permission for the vessel to leave Haldia Dock Complex.
2. Customs Authorities' right to examine the goods.
3. Validity of the Customs Authorities' refusal based on pending Bills of Entry.
4. Application of Sections of the Customs Act, 1962.
5. Rights under Articles 14 and 21 of the Constitution of India.

Summary:

1. Withholding of permission for the vessel to leave Haldia Dock Complex:
The petitioner, an Australian company, entered into an agreement to deliver a cargo of red lentils to Indian buyers. However, due to a quality dispute raised by the broker, the buyers refused to accept the cargo. The petitioner sought permission to take the cargo to Tuticorin for sale but was denied by the Customs Authorities on the grounds of pending Bills of Entry.

2. Customs Authorities' right to examine the goods:
The Customs Authorities argued that they have the right to examine the goods under Section 17 of the Customs Act, 1962. However, the court noted that this examination is only relevant for goods intended for home consumption or warehousing, which was not the case here since the petitioner sought to leave Haldia without importing the goods.

3. Validity of the Customs Authorities' refusal based on pending Bills of Entry:
The court found that the refusal by the Customs Authorities to grant permission based on pending Bills of Entry was invalid. The importers had provided 'no objections' to the petitioner leaving with the cargo, making the Customs Authorities' stance baseless.

4. Application of Sections of the Customs Act, 1962:
The court analyzed several sections of the Customs Act, including Sections 2(23), 2(25), 2(26), 17, 23(2), 46, 111, 112, 122A, 141, and 149. It concluded that none of these provisions justified the Customs Authorities' refusal. The court emphasized that the petitioner had not violated any law and there were no outstanding claims or charges against them.

5. Rights under Articles 14 and 21 of the Constitution of India:
The court reiterated that Articles 14 and 21, which guarantee equality before the law and protection of life and personal liberty, apply to all persons in India, including foreign nationals. The Customs Authorities' actions were found to be in violation of these constitutional rights.

Conclusion:
The court directed the Customs Authorities to issue the necessary permit for the petitioner's vessel to leave Haldia Anchorage and sail to Tuticorin or any other destination. However, it clarified that this order does not grant permission to unload goods at Tuticorin, and the petitioner must comply with legal requirements at the new port. The court also noted that there would be no order as to costs and certified copies of the judgment could be issued upon compliance with formalities.

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