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TMI Blog2017 (8) TMI 347X X X X Extracts X X X X X X X X Extracts X X X X ..... nying the consignment was raised on M/s. Visha Enterprises, Delhi (hereafter 'Visha Enterprises'). Upon the arrival of the consignment in Delhi, the importer Visha Enterprises did not file any bill of entry and also did not send any remittance for such consignment. 3. On 2nd May, 2016, the Directorate of Revenue Intelligence ('DRI') requested the Deputy Commissioner (Import Shed) at the Indira Gandhi International ('IGI') Airport, New Delhi to put the consignment on hold and to examine the same in the presence of DRI officers. 4. The Petitioner sought permission from the Customs authorities to reexport the goods - which request was forwarded by the Commissioner of Customs (Import) on 25th May 2016. The DRI then sought a clarification if the process of import with respect to the said consignment was completed. This letter dated 24th June, 2016 was also sent to the importer Visha Enterprises. 5. On 22nd July, 2016, the Petitioner through its Authorised Representative (AR) requested both the DRI and the Customs authorities for grant of No Objection Certificate ('NOC') or permission to re-export the consignment. It is the case of the Petitioner that it continues to be the owner of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms Act, 1962 (hereafter referred to the 'CA'), as imports of health products were barred under Section 22 of the Food Safety and Standards Act, 2006 (hereafter 'FSSA'). However, rather surprisingly, he also accepted the explanation of the Petitioner that the consignment had been wrongly despatched to India and that this was a case of bona fide mistake. After having been passed orders of confiscation, the ACC (Imports) did not levy any fine or penalty. 8. On 18th January, 2017, the Petitioner, relying upon the said order of the ACC (Imports) sought waiver of ground rent and demurrage charges. This was followed with another request on 4th February, 2017 to CELEBI, the customs cargo handler at the IGI Airport, for waiver of the said charges. Upon not getting a positive response, the Petitioner filed a second writ petition being W.P. (C) No.2773/2017 in which this court passed the following order dated 27th March, 2017. "W.P.(C) 2773/2017 The Petitioner's grievance is that despite the order dated 14.09.2016 passed by this Court in W.P.(C)7309/2016, the respondents have not issued a detention certificate in accordance with law. Mr. Amit Bansal, Advocate appearing on advance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r would be entitled for waiver as the ACC (Imports), in his order dated 13th January, 2017, had, after evaluating the material available on record, held that the Petitioner's export of the consignment to India was a bona fide mistake. 12. Ms. Manish, relying on Circular No. 4/2015-CUS dated 20th January, 2015, submitted that CELEBI and DIAL usually grant such waivers as per the prevalent policy. She strenuously urges that since the competent authority has held that the export to India was a bona fide mistake, the Petitioner is entitled to the benefit of the said circular. Ms. Manish further relies upon the judgments in International Airports Authority of India v. Grand Slam International, (1195) 3 SCC 151 and Garden Silk Mills Ltd. v. UOI (1999) 8 SCC 744 to state that the Petitioner continues to be the owner of the goods and since the bill of entry had not been filed, there was no import in the eyes of law. She further relies upon Union Of India v. Sampat Raj Dugar, (1992) 2 SCC 66 in support of the Petitioner's case. Ms. Manish thus submits that permission for re-export having been granted, the Respondent ought to be directed to waive the demurrage / rent charges. Respon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erprises, B-6/4, 2nd Floor, Ramesh Nagar, New Delhi - 110015. (ii) Airway Bill No.607-67933913 dated 23rd April, 2016 showing the consignee name and address of Visha Enterprises. 19. There is not a single document to support the Petitioner's case that the consignment was meant for Singapore and not for Delhi. The undated letter written by the Petitioner to the Manager of the Etihad Airlines, New Delhi reads: "Dear Sir, I would like to bring to your kind notice that by mistake our dispatch team has released wrong cargo to New Delhi Airport via Awb bill no 607- 67933913. As unfortunately pallets got exchanged at the time of delivery. Due to delay our order got cancelled So I request you to pls arrange to bring back our cargo. We will pay you all overhead expenses to bring back our shipment." Even as per this letter the Petitioner is requesting Etihad Airlines to bring back the cargo due to the delay and claims that there was an exchange of pallets. 20. There is nothing on record to support the case of the Petitioner that there was a bona fide mistake or that the goods were meant for Singapore and were wrongly brought to India. All the documents on record clearly reveal th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni drugs as defined in clauses (a) and (h) of section 3 of the Drugs and Cosmetics Act, 1940 (23 of 1940) and rules made thereunder; (iii) does not claim to cure or mitigate any specific disease, disorder or condition (except for certain health benefit or such promotion claims) as may be permitted by the regulations made under this Act; (iv) does not include a narcotic drug or a psychotropic substance as defined in the Schedule of the Narcotic Drugs and Psychotropic Substances Act, 1985 (61 of 1985) and rules made thereunder and substances listed in Schedules E and EI of the Drugs and Cosmetics Rules, 1945; (2) "genetically engineered or modified food" means food and food ingredients composed of or containing genetically modified or engineered organisms obtained through modern biotechnology, or food and food ingredients produced from but not containing genetically modified or engineered organisms obtained through modern biotechnology; (3) "organic food" means food products that have been produced in accordance with specified organic production standards; (4) "proprietary and novel food" means an article of food for which standards have not been specified but is not unsafe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods is imposed under sub-section (1) of the owner of such goods or the person referred to in sub-section (1) shall, in addition, be liable to any duty and charges payable in respect of such goods." 24. Mere non-imposition of penalty/fine, which is the mandate under Section 125 of the CA in case of confiscated goods, cannot automatically result in letting the Petitioner go scot-free. The ACC (Imports) had no discretion not to impose fine as the provision clearly provides that "officers.......... shall ....... give to the owner of the goods.......... an option to pay in lieu of confiscation such fine as the said officer thinks fit............". Thus, the imposition of fine under Section 125 was a logical and mandatory consequence once the goods were confiscated. Once the fine is imposed, the owner of goods is liable to any duty and charges payable in respect of the said goods under Section 125 (2) of the CA. 25. The question that then arises is whether the Petitioner is entitled to waiver of demurrage/rent charges. This issue is no longer res integra. In Trip Communication (supra), this Court has discussed the law on the subject after taking into account the various prevalent p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ns, relied upon by the Petitioner, would support the position that is being canvassed by the Petitioner. 27. The Regulations relied upon by the Petitioner do not come to the Petitioner's rescue as the same do not apply in the case of goods which are confiscated and Regulation 6 (1) (l) is itself "subject to any other law for the time being enforced". Thus, the Regulations are subject to the provisions of the CA. 28. The judgment in Garden Silk Mills (supra) does not come to the aid of the Petitioner, inasmuch as, para 18 of the said judgment relates to the taxable event after import and does not deal with the payment of demurrage /rent charges while the goods are under detention. Moreover, Section 111(d) applies not just to `imports' but even `attempts to import'. Even in the case of Sampat Raj Dugar (supra), the Supreme Court while holding that the exporter is the owner of the goods, permitted re-export "in accordance with law and subject to payment of such dues or other charges as may be leviable in that behalf". In Grand Slam (supra) it was unequivocally held that that the custodian of the goods would be entitled to charge demurrage for the goods in its custody. 29. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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