2024 (7) TMI 769 - HC - Customs

Confiscation - penalty - import of Soya Beans - petitioner is an importer within the meaning of Section 2(26) of the Customs Act, 1962 or not - jurisdictional error or not in invoking Section 112(a) of the Customs Act, 1962 - HELD THAT - No doubt, the petitioner would have had transactions with the shipper, namely, STE EKE ET FILS SARL. The transactions were to be routed through the Bank namely, Bank PSC Dubai, United Arab Emirate. In the above said Bill of Lading, the petitioner's name has been shown as notified party. Thus, unless the transaction is complete in all respects, the petitioner cannot be termed as an Importer. To import the goods, the petitioner should have been given all the documents to negotiate the same with the Bank. In this case, the shipper has not given the documents and therefore, the petitioner has not come forward to take delivery of the same. Thus, the petitioner neither satisfies the definition of Importer within the meaning of Section 2(26) of the Customs Act, 1962 nor has crossed the threshold under Section 46 of the Customs Act, 1962 to file a Bill of Entry for clearance of imported goods for home consumption. Therefore, imposition of penalty on the petitioner on the abandoned cargo cannot be justified in the absence of Bill of Entry by the petitioner. Although the petitioner has an alternate remedy by way of an appeal before the Appellate Commissioner under Section 128 of the Customs Act, 1962, there is no reason to prolong the litigation for the time to come - Petition allowed.

Issues:
1. Confiscation of consignment and penalty imposition under Customs Act, 1962.
2. Jurisdictional error in invoking Customs Act sections.
3. Importer status and obligations under Customs Act.
4. Dispute resolution regarding unclaimed cargo and importer liability.
5. Validity of impugned order and appeal options.

Confiscation of Consignment and Penalty Imposition:
The petitioner challenged the Order-in-Original confiscating a consignment of imported "Soya Beans" and imposing a penalty of Rs. 10,00,000 under Section 112(a)(i) of the Customs Act, 1962. The impugned order stated the goods were liable for confiscation but not available, leading to the penalty imposition. The petitioner argued against the validity of this order.

Jurisdictional Error in Invoking Customs Act Sections:
The petitioner contended a jurisdictional error in invoking Section 112(a) of the Customs Act, 1962, and questioned the merit of the show cause notice under Section 111(d) of the Customs Act, 1962. The petitioner claimed not to be an importer due to missing shipping documents and disputed the basis for the penalty.

Importer Status and Obligations:
The petitioner argued that as per Section 46 of the Customs Act, 1962, only an importer is required to file a Bill of Entry, which was not done in this case due to missing documents. The petitioner claimed non-importer status and challenged the proceedings as arbitrary.

Dispute Resolution Regarding Unclaimed Cargo and Importer Liability:
The respondents argued based on previous transactions and correspondence that the petitioner had importer status, citing instances where the petitioner was involved as an importer. The petitioner's claim of being a notified party and relinquishing title was disputed by the respondents.

Validity of Impugned Order and Appeal Options:
The court analyzed the transactions and importer obligations under the Customs Act, ultimately finding in favor of the petitioner. The court noted the absence of complete transactions and documents necessary for importer status, leading to the quashing of the impugned order. The court highlighted the petitioner's right to appeal under Section 128 of the Customs Act, 1962, but decided to allow the writ petition to end the litigation promptly.

This detailed analysis covers the various issues raised in the legal judgment, addressing the arguments presented by both parties and the court's final decision in the matter.

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