2023 (12) TMI 1022 - HC - Customs

Direction for issuance of a detention waiver certificate - It is submitted that the delay in releasing the goods is on account of detention of the goods by respondent Nos. 1 2 for the purpose of investigation which lasted for almost 2 months and, therefore, the delay in releasing the goods cannot be attributed to the petitioner - HELD THAT - The procedure for issue of Detention Certificate is notified in Public Notice No. 111 of 1985 dated 29.07.1985 of the Bombay Custom House issued much prior to the Handling of Cargo in Customs Area Regulations, 2009. Paragraph 2 of the Public Notice No. 111 of 1985 sets out the circumstances under which a regular detention certificate could be issued by the Customs House for facilitating the importers to get remission of demurrage charges. Section 46 (4A) provides that the importer shall ensure the accuracy and completeness of the information given therein and the authenticity and validity of any document supporting it and compliance with the restriction or prohibition, if any, relating to the goods. It appears that on account of price difference between the supplier invoice and manufacturer invoice, the respondents are contending that the petitioner has not ensured the accuracy and completeness of the information given therein - one cannot say that the petitioner has not given accurate and complete information with respect to the price difference. The petitioner has filed the documents in support of its explanation which has not been rebutted by the respondents, and therefore reliance placed by the respondent Nos. 1 2 on Section 46(4A) of the Customs Act is not appropriate to deny the issuance of detention waiver certificate. In the instant case, the demurrage could have been avoided if after removing the goods for testing, same were directed to be shifted to warehouse under Section 49 of the Act. The petitioner on 13th January 2021 sought such permission and which was immediately granted but the same could have been done when the goods were detained for investigation. Therefore, respondent Nos. 1 2 were not justified in not responding to various letters of the petitioner seeking waiver certificate and now to justify the same in reply affidavit. In our view, the petitioner is therefore entitled to detention waiver certificate upto the period 13th January 2021. The respondent no. 1 has relied upon the decision of the Supreme Court in case of JINDAL DRUGS LTD. ANR. VERSUS THE UNION OF INDIA ORS. 2018 (8) TMI 49 - SUPREME COURT . The Supreme Court in this case held that the revenue cannot be made liable to pay demurrage charges unless the action of the detention is palpably wrong or wholly unacceptable. Respondent Nos. 1 2 to issue detention waiver certificate within a period of four weeks from today - Petition disposed off.

Summary

Issues Involved:
1. Issuance of Detention Waiver Certificate.
2. Reimbursement/Refund of Detention Charges.

Summary:

Issuance of Detention Waiver Certificate:

The petitioner, engaged in importing agrochemicals, sought relief under Article 226 of the Constitution of India, specifically requesting the issuance of a detention waiver certificate from Respondent No. 2. The petitioner argued that the delay in releasing the goods was due to an investigation by Respondent Nos. 1 & 2, which lasted almost two months, not attributable to the petitioner. The petitioner cited Public Notice No. 26 of 2010, which states that no rent or demurrage should be charged if goods are detained by customs. Respondent Nos. 1 & 2 contended that due to mis-declaration of the value of goods, the entries in the bill of entry were incorrect, justifying the imposition of detention charges. However, the court found that the petitioner had provided a reasonable explanation for the price difference, which was not rebutted by the respondents. The court also noted that Respondent Nos. 1 & 2 failed to respond to the petitioner's repeated requests for a waiver certificate, which should have been addressed promptly. The court referred to various circulars and instructions emphasizing that detained goods should be moved to a customs warehouse to avoid demurrage. Consequently, the court directed Respondent Nos. 1 & 2 to issue the detention waiver certificate within four weeks.

Reimbursement/Refund of Detention Charges:

The petitioner also sought reimbursement/refund of detention charges amounting to Rs. 46,96,695/- paid to Respondent No. 3 along with interest. However, the court clarified that it was not adjudicating any dispute between the petitioner and Respondent No. 3, and no relief was granted against Respondent No. 3 in this matter. The court emphasized that its observations should not be interpreted as views on the dispute between the petitioner and Respondent No. 3.

Conclusion:

The petition was disposed of with the following orders:
1. Respondent Nos. 1 & 2 to issue the detention waiver certificate within four weeks.
2. No adjudication on the dispute between the petitioner and Respondent No. 3.
3. No costs.