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TMI Blog2014 (3) TMI 136X X X X Extracts X X X X X X X X Extracts X X X X ..... time they were brought in. Clearly the importer in effect abandoned them once it became aware of the liability to pay anti-dumping duty. The importer also averred positively that the petitioner is the owner of the goods. - the goods in question here are entitled to be treated and cleared for re-export - Decided in favor of petitioner. - W. P .(C) 8229/2013 - - - Dated:- 18-2-2014 - S. Ravindra Bhat And R. V. Easwar,JJ. For the Petitioner : Sh. Arun Kathpalia and Sh. Dhrupad Das, Advocates. For the Respondents : Sh. Satish Kumar, Sr. Standing Counsel, Sh. Sumeet Pushkarna, CGSC with Ms. Aditi Mohan, Advocate, for UOI. JUDGMENT Mr. Justice S. Ravindra Bhat (Open Court) 1. The petitioner seeks appropriate directions under Article 226 of the Constitution of India, to the respondents, including Customs authorities, to permit it to re-export Synchronous Digital Hierarchy (SDH) Transmission Equipment, which had been brought into the country. 2. The facts necessary to decide the case are that M/s. Etisalat DB Telecom Pvt. Ltd. the third respondent (hereafter Etisalat ) had placed a Purchase Order No. (hereafter PO ) dated 16.09.2009 for supply of Microwave H ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner, submits that the title to the goods continue to vest in the said supplier. Learned counsel relied on the documents of title and emphasized that the revised PO issued on 22.12.2009 had deleted all references to the goods. This was on account of a completely unforeseen event, i.e. imposition of 236% provisional anti-dumping duty. By the time this event came to light, the goods had been shipped. This rendered the entire contract unviable for Etisalat; it resultantly cancelled the contract and even abandoned its efforts in assisting the petitioner to ensure re-export of the goods. Learned counsel highlighted that the petitioner was not an importer, and that its status as owner of the goods continued; neither were they appropriated to the contract, so that the title passed to Etisalat, nor did the petitioner receive consideration for the goods. Therefore, it cannot be penalized; it is a victim of circumstances. 6. Counsel submitted that the respondent authorities are not acting consistently. He emphasized that a subsidiary of Etisalat, M/s. Allianz had faced an identical problem in Kolkata, and like in the present case, applied to the Commissioner, who granted the request to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . This has resulted in a disadvantage and most certainly prejudiced it. 9. In Sampat Raj Dugar (supra), purchaser of goods obtained an advance import license for importing raw silk. The license was granted on the condition that the raw silk imported would be utilized for manufacturing and exporting garments. The purchaser later received three consignments but did not fulfill the stipulated condition. Subsequently, the supplier, an Indian national residing and doing business abroad, sent certain quantities of raw silk in four lots, deliverable to the purchaser. The necessary documents were sent to the first supplier's bankers with instructions to deliver them to it on receiving payment. When the four consignments arrived in India, the overseas supplier appeared before the Customs authorities and claimed the right to take delivery of the goods. The authorities, who had come to know by then of the non-compliance of the stipulated condition with respect to the three earlier consignments and also of the alleged misrepresentation made by the buyer, while obtaining the advance import license, initiated proceedings against her and two other persons. In view of the proceedings, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the imported goods. He just abandons them. (We may reiterate that we are speaking of a case where the import is not contrary to law). It is only with such a situation that we are concerned in this case and our decision is also confined only to such a situation. Condition (ii) in sub-clause (3) of Clause 5, in our opinion, does not operate to deprive the exporter of his title to said goods in such a situation. 20. At this stage, it may be appropriate to clarify one aspect. There may be cases, where the importer opens a letter of credit and makes some other arrangement ensuring/guaranteeing payment of price of imported goods. In such a case, it will be open to the exporter, in case of non-payment of price or abandonment by the importer, to collect the price by invoking such arrangement. In such a case, it is obvious, the exporter will not be allowed to claim title to and/or to re-export the goods. (Indeed, it is unlikely that in such a case, the importer abandons the goods ordinarily speaking.) It is therefore necessary that in all such cases, the authority should issue a notice to the importer and/or his agent before allowing the exporter to deal with or seek to re-export the go ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he goods on payment of a nominal penalty or without any penalty as he deems fit, provided that he is satisfied that the goods have been imported as a result of bona fide mistake and contrary to the importer s instructions subject to production of a no objection certificate from the Reserve Bank of India for re-shipment of the goods. In this regard, trade has expressed difficulties in obtaining the NOC from RBI and stated that, at times, it takes a minimum of one week to obtain the certificate. Therefore, they have requested for allowing re-shipment without insisting on the production of NOC from RBI. The matter has been examined in consultation with the Reserve Bank of India who have opined that the NOC from RBI need not be insisted for re-export of such imported items. Therefore, the Commissioner may use his discretion and allow re-export without the requirement of a No Objection Certificate from the Reserve Bank of India, on payment of a nominal penalty or without any penalty as he deems fit, provided that he is satisfied that the goods have been imported as a result of bona fide mistake and contrary to the importer s instructions. Kindly bring the above instructi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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