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TMI Blog2018 (7) TMI 1020X X X X Extracts X X X X X X X X Extracts X X X X ..... rom Australia and filed five bills of entry to clear the cargo, which were stuffed into 36 containers. Due to financial crisis in the business of the petitioner, they were unable to pay the customs duty within the time stipulated. Consequently, the containers were kept in the custody of the second respondent on the orders passed by the first respondent. 3.The petitioner would state that it came to their knowledge through their Cstoms House Agent that the goods imported by them, in the custody of the second respondent, were scheduled to be brought for e-auction pursuance to a notification dated 12.02.2018. The petitioner would state that they had arranged for payment of the customs duty and requested for release of the containers. Further, the petitioner undertook to pay all the other charges, which are payable by them on account of not clearing the goods earlier. 4.The learned Senior Counsel for the petitioner would submit that the petitioner has paid a sum of Rs. 5,18,642/- towards customs duty by way of online payment on 08.03.2018 and this payment includes penalty amount of Rs. 5,000/-. In spite of these efforts, since the respondents had proceeded with the auction and at that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and the subject cargo become liable for disposal under Section 48 of the Act. 9.Further, it is submitted that the respondents have issued notices to the importer and the first notice in respect of lot no.27 was issued on 14.07.2016 and final notice on 09.08.2016; for lot no.28, first notice was issued on 21.07.2016 and final notice on 16.08.2016; for lot no.29, first notice was issued on 14.07.2016 and final notice on 09.08.2016; for lot no.30, first notice was issued on 16.08.2016 and final notice on 01.09.2016; and for lot no.34, first notice was issued on 25.07.2016 and final notice on 16.08.2016. Therefore, it is submitted that it is incorrect to state that no notice was issued to the petitioner before proceeding under Section 48 of the Act. 10.It is her further submission that the petitioner has approached the Commissioner of Customs only on 05.03.2018 requesting permission to clear the cargo. Though the petitioner had approached the Department at the eleventh hour after about one and half years, the Department had advised the petitioner to get the bills of entry reassessed and pay the duties, as the consignments cannot be cleared without payment of duty. 11.It is further s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the petitioner has been delaying the process thereby, causing huge loss of business opportunities to the second respondent. Taking into consideration all these facts, the first respondent has allowed the auction of the goods and e-auction was fixed on 08.03.2018 along with the other goods in the Container Freight Station and a wide publicity was given about the auction in the newspapers. 16.The second respondent would further state that they have accepted the offer given by the highest bidder and the bid has become final on 12.03.2018 and hence, the petitioner is not entitled for any relief. On the above grounds, the learned counsel prayed that the prayer sought for in the writ petition may be rejected. 17.Reply affidavit has been filed by the writ petitioner to the counter affidavit filed by the second respondent, wherein after reiterating the contentions raised earlier, with regard to violation of Section 48 of the Act, it is submitted that the petitioner brought 92 containers in one slot during June 2016 of which, they have cleared 41 containers at different intervals of time after paying necessary storage charges and the petitioner is ready and willing to pay the storage ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandatory procedure under Section 48 of the Act by issuance of notice to the importer has been not followed is factually incorrect and the same stands rejected. 24.Having held so, it has to be seen as to what is the relief the petitioner would be entitled to in the writ petition. The facts disclose that the petitioner had imported goods in 96 containers of which, 41 have been cleared at different points of time for which, duty and all other charges have been paid by the petitioner. Therefore, it may not be a case where there is total lack of bona-fide on the part of the petitioner. It is no doubt true that one and half years had lapsed and the containers were lying in the Container Freight Station. Consequently, the second respondent lost other business opportunities. However, if the petitioner chooses to clear the cargo upon permission being granted by the first respondent, it goes without saying that the petitioner should not only pay the customs duty and other levies payable under the Act, but also is bound to clear the entire dues to the second respondent, which is all inclusive. 25.The second respondent has taken a stand that on and after 12.03.2018, the sale has been confir ..... X X X X Extracts X X X X X X X X Extracts X X X X
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