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TMI Blog2010 (6) TMI 477X X X X Extracts X X X X X X X X Extracts X X X X ..... H.N. Devani, J. (Oral)]. - Learned advocate for the petitioner has tendered draft amendment. However, considering the fact that by way of the amendment, the petitioner seeks to enlarge the scope of the original petition, the amendment is rejected. 2. By this petition under Article 226 of the Constitution of India, the petitioner seeks the following reliefs :- (1) Your Lordship be pleased to issue a writ of or in the nature of mandamus quashing and setting aside the order of the respondent no. 2 rejecting the application of the petitioner for extension of the warehousing period and for waiver of interest as communicated vide letter dated 3-11-06 at ANNEXURE, K. (2) Your Lordship be pleased to issue a writ of or in the nature of mandamus restraining the respondent no. 4 from proceeding further with the show cause notices dated 5-9-06 and 13-11-06 at ANNEXURE J and ANNEXURE L hereto. (BB) Your Lordships be pleased to issue a writ of or in the nature of mandamus quashing and setting aside the order of the respondent no. 2 rejecting the representation of the petitioner for extension of the warehousing period and for waiver of interest after 17-3-2006 vide its orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clearing the respective quantity of cargo from the warehouse but for one reason or the other, clearance got delayed. The petitioner, therefore, approached this High Court by way of a writ petition being Special Civil Application No. 1046 of 2006 seeking a direction against the Customs authorities to permit clearance of cargo as requested for by the purchasers. In the meantime, the warehousing period expired and the petitioner requested the Commissioner of Customs, Kandla for extension of warehousing period and the Commissioner granted an extension for six months. Even during the extended period of warehousing, the petitioner could not remove the goods. The petitioner, therefore, made an application dated 20th March, 2006 requesting for waiver of interest and another application dated 26th March, 2006 requesting for extension of warehousing period for three months. Vide show-cause notice dated 5th September, 2006, the petitioner was called up to show cause as to why interest amounting to Rs. 41,74,758/- should not be recovered from it under Section 61(2)(ii) of the Customs Act, 1962. The petitioner submitted its reply to the said show-cause notice stating that its application for w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the period 11th November, 2005 to 17th March, 2006 whereas the request for waiver of interest for further period came to be rejected. 7. Subsequently, the petitioner moved an amendment in the present petition seeking to challenge the aforesaid order made by the Chief Commissioner which came to be granted vide order dated, 1st July, 2008. 8. Mr. Dhaval Shah, learned advocate for the petitioner has vehemently assailed the impugned order dated 7th March, 2008/8th March, 2008 made by the Chief Commissioner. Reiterating the facts stated in the petition, it was submitted that in the light of the facts and circumstances pointed out by the petitioner indicating compelling reasons beyond its control, the Chief Commissioner was not justified in rejecting the application of the petitioner for further extension. It was urged that considering the fact that delay in clearance of the goods has been occasioned on account of the default on the part of the Customs authorities, the Chief Commissioner was not justified in not granting waiver of interest till the goods were finally cleared. Referring to the contents of the impugned order, it was pointed out that the Chief Commissioner has placed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity under the said order was essential for clearance of Naphtha/product contaminated with Naphtha. The necessary no-objection certificate issued by the District Supply Officer, Kutch came to be forwarded vide letter dated 5th June, 2006 from the Office of Collector, Kutch and was received on 12th June, 2006. The Ex-Bond Bill of Entry was assessed on receipt of the said No Objection Certificate and submission of end use Bond. Thus, there was nothing to substantiate the allegation that it was on account of default on the part of the Department that the goods could not be removed within the extended warehousing period, which was up to 17th March, 2006. 11. On the question of waiver of interest, the Chief Commissioner noted that for the period up to 17th March, 2006 there was a dispute regarding the classification of the goods, which was pending for want of chemical test report; on 9th March, 2006, BPCL Laboratory sent the final test report; and that the warehousing period was extended up to 17th March, 2006 by the Commissioner of Customs, Kandla. The Chief Commissioner was accordingly of the view that the petitioner had a good case for waiver of interest only up to 17th March, 2006. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minated cargo in an auction. On account of contamination of the cargo, there was a classification dispute as to whether the goods in question were required to be classified as HSD or other petroleum products . Vide order dated 7th March, 2006 made in Special Civil Application No. 1046 of 2006, by way of interim relief, this High Court directed that the cargo be treated as other petroleum product . The Court further directed that the petitioner shall give the following details to the respondent No. 4, that is, the Assistant Commissioner (Bond) Custom House, Kandla : (i) The details of the persons to whom the cargo is to be sold. (ii) End use bond along with the bill of entry shall be procured from the buyer and that shall be submitted to respondent No. 4 and thereafter end use certificate shall be submitted for discharging the bond to the respondent No. 4. At this stage, two bills of entry were pending clearance. On 20th March, 2006, the petitioner made an application for waiver of interest leviable under Section 61 of the Customs Act. On 27th March, 2006, an application came to be made for extension of warehousing period. For clearance of the goods the respondents i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the warehoused goods, for the period from the expiry of the said ninety days till the date of payment of duty on the warehoused goods. Provided that the Board may, if it considers it necessary so to do in the public interest, by order and under circumstances of an exceptional nature, to be specified in such order, waive the whole or part of any interest payable under this section in respect of any warehoused goods : 14. On a plain reading of the aforesaid provision, it is clear that if goods remain in the warehouse beyond the specified period, the owner of the goods would be liable to pay interest at the specified rate. However, by virtue of the proviso thereto, the Board is empowered to waive the whole or any part of the interest payable under the Section by order and under circumstances of exceptional nature, to be specified in such order. Thus, while considering the application for waiver of interest, the authority concerned is required to examine as to whether any exceptional circumstances have been made out so as to waive interest payable by such person and is also required to specify such reasons in the order granting waiver of interest. In the facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... found in the impugned order of the Chief Commissioner in not extending the warehousing period. 16. Insofar as non-supply of the reports of the Commissioner of Customs, Kandla and Additional Commissioner of Customs, Kandla which find reference in the impugned order, the Chief Commissioner has placed reliance on the same for coming to the conclusion that the delay in clearance of the goods was not occasioned on account of default on the part of the respondents. The Chief Commissioner in the impugned order has specifically referred to the facts stated in the said report to the extent he has placed reliance upon the same. While challenging the impugned order of the Chief Commissioner, it is not the case of the petitioner in the petition that the findings recorded therein are incorrect. Except for stating that the delay had been caused by the respondents, no specific averments have been made to point out as to how the respondents are responsible for delay, or as to how the factual findings recorded by the Chief Commissioner are erroneous. In the circumstances, the petitioner has not been able to point out any prejudice on account of non-supply of the said reports. 17. Thus, from the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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