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TMI Blog2018 (3) TMI 1101X X X X Extracts X X X X X X X X Extracts X X X X ..... e Commissioner would only, obviously be prospective and cannot be retrospective, in any event. Therefore, in the present case, it appears that the learned Commissioner has acted on an understanding that since the goods in question being imported under the EPCG Scheme had already been “unloaded” at Dhamra Port, the “Special Order” that he would issue would have to be retrospective to cover the date of unloading. This in our considered view is not consistent with the requirements of the Customs Act, 1962 nor with the relevant Notification No.16/2015- Cus dated 01.04.2015. The Notification No.16/2015-Cus dated 01.04.2015 has been issued by the Government of India in the Ministry of Finance (Department of Revenue) and the Central Board of Excise and Customs. There can be no doubt that the Commissioner of Customs has been vested with the necessary authority under the Proviso to Para-10 above to permit import through any other sea-port within his jurisdiction not covered under Table-2 - the Commissioner of Customs, Odisha has the necessary jurisdiction to issue “special order” for permitting import through any other sea-port (other than though sea-port mentioned in Table 2) subject to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mains in limbo for more than fifteen (15) months and now at this belated stage there is no way in which the petitioner can be compensated. Therefore, this Court calls upon the Finance Ministry of the Union of India to take note of the fact situation that arises in the present case and pass necessary instructions/guidelines either through the Ministry or the CBEC as it may deem appropriate, in order to ensure that such large scale wastage of time and public money does not occur in future cases. The impugned order dated 11.08.2017 under Annexure-1 stands quashed with a further direction to the Commissioner of Customs to issue the necessary “special order” in favour of the petitioner forthwith - Application allowed. - W. P. (C) No. 19675 of 2017 - - - Dated:- 13-3-2018 - Indrajit Mahanty And Biswajit Mohanty, JJ. For the Petitioner : Mr. Asok Mohanty, Sr. Advocate M/s. Rajdipa Behura, D. Das, A.K. Panigrahi, V. Pasayat For the Opp. Party: Mr. A.K. Bose, Asst. Solicitor General, Mr. T.K. Satpathy,Senior Standing Counsel, Mr. Prasenjeet Mohapatra, Standing Counsel, M/s. A.P. Ray, N. Tripathy T.R. Jena ORDER I. Mahanty, J. The petitioner-M/s. Dhamra Port Com ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng authorized to import three Grab Type Ship Unloaders (GTSU) materials along with spares, placed orders with Shanghai Zhenhua Heavy Industries Co. Ltd., China for supply of the same. It appears that the Deputy Director General of Foreign Trade, Cuttack (O.P.No.3) on receipt of application from the petitioner, granted necessary certification on 13.05.2016 for importing the aforesaid items indicating the port of registration as Paradeep Port. The petitioner made an application for issue of necessary license under the Export Promotion Capital Goods (EPCG) Scheme on 28.04.2016. 4. The goods in question were brought by sea-vessel, for which docking permission was sought for on 02.05.2016 from the Deputy General of Foreign Trade, Cuttack under section 30 of the Customs Act (by the person incharge of the Vessel). The Assistant Commissioner, Customs, Dhamra accepted the Import General Manifest (IGM) on 03.05.2016 and the vessel namely, MV Zhen Hua 8 arrived at port/anchorage of Dhamra Port on 05.05.2016. 5. Thereafter basing on the IGM filed by the person incharge of the vessel, the vessel berthed at Dhamra Port and unloaded the goods in question i.e. the three Grab Type Ship Unlo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (Odisha) has been mentioned in Table (2). Since, Dhamra port was not a notified port ; in terms of the Handbook of Procedures stipulated by the Government of India, Ministry of Commerce and Industry, Department of Commerce goods being imported had to be registered obtaining Transfer Release Advice, for short, TRA at the nearest notified port. The relevant portion is quoted herein below: 4.37 Port of Registration (a) Advance Authorisation shall be issued for purpose of import and export through one of sea ports or airports or ICDs or LCS specified below. Authorisation holder shall register authorization at the port specified in authorisation and thereafter all imports against said authorization shall be made only through that port, unless the authorization holder obtains permission from customs authority concerned to import through any other specified port. However, exports may be made through any of the specified ports. (c) For imports from Airport/Seaport/ ICD/LCS other than port of registration, a TRA shall be issued by the customs authority at the port of registration to customs authority at port of import. However, this requirement of TRA shall not be require ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rected the Commissioner to pass a reasoned order after giving opportunity of Personal Hearing following Principles of Natural Justice to the importer. Accordingly Personal Hearing was given on 08.05.2017. But due to change of adjudicating authority, another Personal Hearing was given on 31.05.2017. 6. In terms of the aforesaid proviso to Para 10 of Notification 16/2015-Cus dated 01.04.2015, the Commissioner can issue Public Notice (PN)/Special Order declaring any port, other than those listed in the Notification, as eligible Port for EPCG Scheme. It is viewed that a Public Notice can be issued under proviso to Para 10 of Notification 16/2015-Cus dated 01.04.2015 only on a prospective basis. There can not be a Standing Public Notice to the effect that Dhamra Port has been notified as eligible Port for EPCG Scheme for all times. Otherwise a Standing Public Notice, declaring a non-eligible port as eligible Port for EPCG purposes, shall tantamount to circumventing the Customs Notification No.16/2015-Cus dated 01.04.2015, which has clearly specified the name of eligible ports therein. Reading contextually, the Special Order, to be issued by the Commissioner should also be prospecti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... importation reference given by DPCL also does not help their cause this time. 9. Challenging the aforesaid order passed by the Commissioner, the present writ petition has come to be filed on various grounds stated in the writ petition. The customs authorities came to file counter-affidavit sworn to by Sri Jayanta Baidyamajumder, Assistant Commissioner under the Commissioner, Customs (Preventive), Bhubaneswar dated 25.10.2017 and further additional counter affidavit dated 04.12.2017 has come to be filed on behalf of Customs pursuant to our direction issued on 27.11.2017 appending thereto certain communication made by the Commissioner, Customs(Preventive), Bhubaneswar with the Central Board of Excise and Customs. 10. The essential stand taken in the counter affidavit filed by the Customs Authorities dated 25.10.2017 is quoted hereunder: 3. That the brief facts of the case are that the petitioner-company has imported goods Grab Type Ship Unloader (GTSU) under the EPCG scheme for development of Port Project. The petitioner has been issued EPCG Authorization letter dated 13.05.2016 for importation of goods from the Jt. DGFT, Cuttack with Port Registration at Paradip P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to that, the opposite party No.2 has also discussed various irregularities for non-issuance of order in favour of the petitioner-company in his Order dated 11.08.2017. The petitioner states, inter alia, that they submitted the letter dated 06.05.16 requesting the authority to issue Public Notice/Special Order to notify Dhamra Port for exemption of Customs duty in pursuance of Para 10 of Notification No.16/2015- Cus dated 01.04.15. But the fact remains that the said letter was actually received in the office of the authority only on 09.05.16 and by that time, the subject goods had been unloaded in Dhamra Port, which has been specifically observed and mentioned in the Order dated 11.08.17. 11. A further affidavit came to be filed by the Customs Authorities dated 04.12.2017 annexing thereto communication issued by the Commissioner of Customs, Bhubaneswar to various authorities in the CBEC seeking clarification and their responses thereto. 12. Although, notices were also issued to the Deputy Director General of Foreign Trade (Respondent No.3) as well as Union of India represented through Chairman of Central Board of Excise and Customs (Respondent No.1) and they were repre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e been imported/shipped/ arrived in advance but not cleared from the Customs. Therefore, it implies that EPCG License can be issued with retrospective effect. Whether the same would also authorize the Customs Authority was not answered affirmatively by the CBEC and, consequently, the Customs Authority could not grant a retrospective Special Order . (vi) Insofar as a similar importation done by the petitioners in the year 2009 was concerned, the Commissioner, Customs was of the view that in the earlier transaction, the Customs Department had been informed about the importation and clearance under the EPCG Scheme before the arrival of the imported goods unlike in the present case. 17. The most important issue that arises for consideration in the present case is, as to whether the Commissioner of Customs was right in rejecting the petitioner s-company application under Proviso to Para-10 of the Notification No.16/2015-Cus dated 01.04.2015. In this respect, the learned Commissioner has expressed his views, that the public notice or the Special Order conceived of in Proviso to Para-10 would only operate on a prospective basis and that no Special Order could be issued by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided that the Commissioner of Customs may, by special order or a public notice and subject to such conditions as may be specified by him, permit import and export through any other sea-port, airport, inland container depot or through a land customs station within his jurisdiction; There can be no doubt that the Commissioner of Customs has been vested with the necessary authority under the Proviso to Para-10 above to permit import through any other sea-port within his jurisdiction not covered under Table-2. In other words, the Commissioner of Customs, Odisha has the necessary jurisdiction to issue special order for permitting import through any other sea-port (other than though sea-port mentioned in Table 2) subject to such sea-port being within his territorial jurisdiction. 18. It would be also relevant to note herein that while the petitioner s-company operates Dhamra port, the said port is a customs port as defined under sub-Section (12) of Section 2 of the Customs Act, 1962 but, admittedly, is not a port mentioned in Table-2 of the aforesaid Notification. It would be relevant to take into consideration the definition of the term customs area from Section 2(11) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e customs frontier of India and therefore, VAT could not be imposed on such transaction. Hon ble Supreme Court accepted the appellant s contentions and came to conclude that duty-free shops are deemed to be outside the territory of India and hence, the goods sold in duty- free shops are deemed as not entering the territory of India. Further, in the case of Kiran Spinning Mills Vrs. Collector of Customs, (2000) 10 SCC 228 it has been made clear that the import of goods is completed only when the goods cross the custom barriers. Applying the aforesaid ratio decidendi as laid down by the Hon ble Supreme Court to the facts situation of the present case, it may be seen that admittedly, the goods in question though physically unloaded at Dhamra port, remains in the course of import since no clearance of the said goods have yet been granted. Consequently, the Commissioner of Customs ought to have granted the prayer made by the petitioner instead of rejecting the same on an erroneous conclusion that the goods have already been imported/technically imported. The Customs Act, 1962 does not conceive of any technical import. The import of goods is not possible without necessary clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng of the Commissioner, the learned counsel for Customs could not point out any requirement either under the Customs Act nor under the Foreign Trade Policy of 2015-20 where an applicant for an EPCG licensee was required to intimate the Customs Department (in anticipation of getting the EPCG License) . In other words, on perusing the conditions stipulated under the EPCG Scheme and under the Notification No.16/2015-Cus dated 01.04.2015, there appears to be no such requirement of a licensee to inform the Customs Authorities in advance and that to in anticipation of getting the EPCG License . 21. In the case at hand, as noted hereinabove, it appears that though the petitioner-company claims to have submitted its application to the Commissioner on 06.05.2016 for issue of special order under proviso to Para-10 of Notification No.16/2015-Cus dated 01.04.2015 but, the Customs Authorities claimed that they received such an application on 09.05.2016. Admittedly, the commencement of unloading of the goods covered under the EPCG License commenced only on 09.05.2016 (evening) and that too, after the import manifest as well as permission of unloading was granted by the Customs Authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CBEC did not give any clarification as sought for and left it to the Commissioner to exercise his quasi- judicial authority. In our considered view, the CBECs response was absolutely apt in the circumstances, since any suggestion either way may have amounted to interfering in the exercise of quasi judicial authority by the Commissioner, who alone is vested with the authority for considering any application for issue of any special order under the Proviso to Para-10 of the Notification No.16/2015- Cus dated 01.04.2015. But, the alleged failure on the part of the CBEC to give any clarification as sought for, it appears has been taken as a negative indication by the Commissioner. We have perused the various communications issued by the Commissioner from time to time on the issue of clarification. It appears that by a letter dated 05.01.2017, the Commissioner had addressed the letter to the CBEC requesting the Board may like to consider their request i.e. declaring Dhamra port (petitioner) as an eligible port (on one-time basis) for the import of 3 (three) grab-unloaders under the EPCG Scheme. 24. At the outset, we are of the considered view that such clarification ought not t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ponse to the queries of the Commissioner, the Under Secretary in the Ministry of Finance, Government of India responded to the request on 28.04.2017, reiterating that Clause 2(10) under Notification No.16/2015-Cus dated 01.04.2015 empowers the Commissioner to permit import and export through any other sea-port within his jurisdiction and left the matter to the Commissioner to apply the principles in the said Notification to the fact situations that arise in the said case. Consequently, the failure on the part of either the Government of India in the Ministry of Finance or the CBEC to render any assistance/clarification to the Commissioner cannot form the foundation or basis for denying the petitioner-company the relief that it sought for, without reasonable cause. In the case at hand, we find that the Commissioner has failed to exercise its jurisdiction as vested in it under the Customs Act, 1962 as well as the Customs Notification No.16/2015-Cus dated 01.04.2015 and has also without necessary jurisdiction directed quashing of the TRA issued by the Paradeep Port Customs Authorities on 07.06.2016 while being wholly without jurisdiction is not inconsonance with law. 27. In the lig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oading of the goods at the port and the possible grant of a special order by the Commissioner in terms of the Proviso to Para-10 would not make the order retrospective in effect. In other words, the order of the Commissioner granting special order would only be prospective and it is only after such order is issued, can the petitioner seek for necessary clearance of goods from the Customs Authorities at Dhamra. In other words, as on date of passing of the impugned order dated 11.08.2017 under Annexure-1 by the Commissioner of Customs, the goods were and still remain within their lawful custody, since no clearance of the goods has been sought for nor granted in favour of the petitioner. Therefore, the assumption on the part of the Commissioner that granting of a special order would be retrospective in effect is wholly without sanction of law. Any order passed by the Commissioner will only be prospective and, consequently, grant of a special order by the Commissioner would only operate prospectively and it is only after such an order is passed can the importer (petitioner) seek for customs clearance of the goods in question. 30. Admittedly, in the present case, the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /shipped/arrived in advance but not cleared from Customs. Consequently, there can be no doubt that the aforesaid facts would indicate that the Customs Authority are also duty bound to honour the directions of the Ministry of Commerce and Industry and the terms of the Foreign Trade Policy as formulated by the Government of India and cannot act in a manner to frustrate achieving such objectives. 32. This Court is very concerned that the impugned order came to be passed nearly fifteen (15) months after the necessary application was made and till date in the absence of the special order as required under the Proviso to Para-10 of Notification No.16/2015-Cus dated 01.04.2015 the goods valued at over ₹ 230 crores, remain unutilized and continue to lay at the dock within the customs area of Dhamra port. We are constrained to note that such delay does not serve any purpose either to the Union of India or to the State, since such a huge investment has not been allowed to be utilized for such a long period of time. 33. We are of the considered view that the Union of India should issue necessary guidelines to the Authorities vested with such quasi judicial power to take decision ..... X X X X Extracts X X X X X X X X Extracts X X X X
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