9911796707
TMI Blog2022 (10) TMI 646X X X X Extracts X X X X X X X X Extracts X X X X ..... the cargo of allegedly prohibited genetically modified Soyabean, nor the vessel MV Polaris Z (IMO 9109512) shall be released by the respondent custom authority unless the conditions of furnishing of bond, bank guarantee and giving of undertaking before this court as directed - Satisfaction of those terms shall be operated as preconditions for permitting the cargo in question as well as the vessel to be permitted to leave. As far as the conditions of production of certification of unloading at the Mozambique Port, the time of four weeks is granted from the date of sailing of the vessel. Petition disposed off. - R/SPECIAL CIVIL APPLICATION NO. 17109 of 2022 With R/SPECIAL CIVIL APPLICATION NO. 17831 of 2022 - - - Dated:- 30-9-2022 - HONOURABLE MR. JUSTICE N.V. ANJARIA AND HONOURABLE MR. JUSTICE BHARGAV D. KARIA Appearance: Appearance in SPECIAL CIVIL APPLICATION NO.17109 OF 2022: MR MIHIR JOSHI, SR.ADVOCATE, MR.ROHAN LAVKUMAR, MR VIKRAM NAIK for NANAVATI ASSOCIATES(1375) for the Petitioner(s) No. 1,2 MR PRIYANK LODHA for the Respondent(s) No.2,3 Appearance in SPECIAL CIVIL APPLICATION NO.17831 OF 2022: MR KAMAL TRIVEDI, SENIOR ADVOCATE, MR UNMESH SHUK ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Bill of Entry Nos. 1007108 and 1007106 for warehousing and subsequent home consumption; (vi) to permit unloading the cargo containing Soybean consignment weighing 13,289.50 MT detailed in Bill of Entry for warehousing Nos.1007101, 1007098, 1007096, 1007105 and 1007104 and permit the same be warehoused in the Free Trade Warehouse Zone; (vii) to issue any order or direction to the Respondent Authorities permitting the provisional release and re-export of the said soybean consignment weighing 13,289.50 MT as detailed in Bill of Entry Nos. 1007101, 1007098, 1007096, 1007105 and 1007104 subject to such terms and conditions as required in law and as the Court deems appropriate; (viii) to issue any order or direction to the Respondents and its officers to refrain from taking any coercive actions against the Petitioners. 3.1.1 The goods namely the genetically modified Soyabean, the cargo of which also arrived in the vessel are allegedly prohibited goods not permitted to be imported. In that view, the custom authorities seized the cargo comprising of the allegedly genetically modified Soyabean as well as the cargo of Pigeon peas loaded in the vessel. The vessel was als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial Economic Zone. As far as the seizure is concerned, both the cargo are seized. Admittedly, there is no prohibition for import of pigeon-peas, the consignment of which is seized by the authorities. 4. Learned advocate Mr.Priyank Lodha who appears for the respondents shall file affidavit explaining the stand of the authorities as to in what way and manner the authorities are going to treat the cargo containing soya-bean- the genetically modified goods as well as also the cargo of pigeon-peas which are not prohibited goods. 5. The affidavit shall also state the reasons for detaining the cargo of pigeon-peas along with the other cargo. 3.2.2 The petitions were further considered on 15.9.2022 noticing the prayers in both the petitions, and having regard to the fact that the affidavit dated 15.9.2022 was filed on behalf of the owner of the vessel- the petitioners in Special Civil Application No.17831 of 2022, it was recorded thus, On behalf of the petitioner- vessel owner, additional affidavit dated 15.9.2022 was tendered today. In the said affidavit, following detail is brought out. The copy of the Hull and Machinery Insurance Policy in support of the above a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... released in the presence of the representative of Plant and Quarantine Station, Mundra and FSSAI. Also, it may generally take around 24 hours time in berthing of the vessel and to shift the cargo in Agree Park situated at Mundra, subject to availability of berthing at the port. Shifting of the cargo may be done in the presence of Custom Authorities and the same shall be under Videography. Regards Shrikant Mantri Deputy Commissioner, SIlB Munda Customs. 4.3. In the above communication, the authorities has stated that the cargo of Pigeon Peas can be released in the presence of representative of Plant and Quarantine Station, Mundra and FSSAI. The quantity of Pigeon Peas in the cargo which is 3363.5 MT were tested by taking sample and found non-generically modified, as reflected in the above instruction. 4.4 It is relevant to notice the additional affidavit dated 14.9.2022 filed by the petitioner of the Special Civil Application No.17109 of 2022, in which, in addition to mentioning that the cargo of Soyabean as well as cargo of Pigeon Peas on board the vessel MV Polaris are reported to be in degrading condition and that they are prone to climatic conditions to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ate to the competent custom authority the name of its representative who would remain present throughout the unloading of cargo. In addition to the above two representatives, the representative of Plant and Quarantine Station, Mundra and FSSAI shall also remain present. (iv) The release of the cargo to be done in the presence of representative of custom authorities as above and entire unloading shall be videographed. (v) While and after unloading the cargo of Pigeon Peas the respondent authorities shall undertake the process of granting clearance to the cargo by finally assessing the nature of goods which are detailed in bill of Entry Nos.1007108 and No.1007106. (vi) The process of clearance report shall be produced before the court on the next date. (vii) On the next date, the authorities shall file an affidavit stating about the procedure in law they would require to undertake and giving details of such legal procedure for the purpose of treating the alleged genetically modified Soyabean. 3.3 Additional affidavit in reply dated 1.9.2022 was filed on behalf of the respondent No.3 which was taken on record and following further order was passed on 22.9.20 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtation of the goods. He further submitted that the same will have to be done in accordance with law and after considering the applications for provisional release of the goods pending at the instance of both the petitioners. 3.1 It is to be recollected that first captioned Special Civil Application No. 17109 of 2022 is filed by the importer of goods, Genetically Modified Soybean, whereas the other petition is by the owner of the vessel in which the goods travel to reach the Port of Mundra. 4. Learned Senior Advocate Mr. Mihir Joshi for the petitioner in Special Civil Application No. 17109 of 2022 stated that the petitioner has already filed application dated 27.07.2022 (copy figuring at page 214 of the petition), dated 03.08.2022 (page 217 in the petition) and dated 16.08.2022 (at page 219), whereby the authorities have been forwarded the request to provisionally release the goods in question. It was further submitted that once the appropriate decision is arrived at by the authorities, the petitioner is willing to deport the goods back to the country of origin as they are considered prohibited goods. 4.1 Learned senior advocate Mr. Kamal B. Trivedi, appearing for th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt authorities have proposed imposition of three conditions namely the bond for entire value of cargo of allegedly prohibited genetically modified Soyabean, that is 84 crores in rupees. Second condition sought to be imposed is the bank guarantee of 25% of the value of the cargo that is 21 crores in rupees. The last was to give undertaking of unloading of the goods at Mozambique Port and to submit the same once the goods are offloaded at Mosambique Port. It was stated that the cargo of the said allegedly prohibited goods could be provisional release for the purpose of deportation back to the country of origin, on compliance of such condition. 3.5 While on one hand, authorities have proposed the aforesaid preconditions for the purpose of provisional release of cargo, learned advocate for the respondent submitted that in the normal circumstances, the prohibited goods were liable to be destroyed, still however the authorities have thought it appropriate to provisionally release on aforesaid conditions in view of the facts operating in the case. We take notice of this solution- oriented stand and the submission accordingly made on the basis of instructions while passing the present o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missioner of Customs, Tuticorin [2022 (379) E.L.T. 69], again in Madras High Court decision it was observed, Admittedly, now the petitioner is not in a position to export the goods due to the cancellation of the export order. The goods are berthed in Tuticorin Port and kept idle and because of that, the demurrage and container charges has been mounting heavily. Since the export order has been cancelled, the petitioner wants to take back the cargo to their premises, but the 3rd Respondent insisting the petitioner for bank guarantee for 25% of the value as security for provisional release of the goods. In the considered opinion of this court, the question of providing bank guarantee does not arise, when the petitioner take back the goods, due to cancellation of the export order. 5. In the facts of the case cumulatively obtained, this court finds, having regard to the principles stated by the High Court of Madras in the above decisions which we endorsed to, that even as the adjudication is pending, seeking bank guarantee to the tune of 25% towards the value of the goods would mount heavy and would operate harsh on the petitioners. The bank guarantee may be obtained for Rs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o of Soyabean. 5.4 It is provided that neither the cargo of allegedly prohibited genetically modified Soyabean, nor the vessel MV Polaris Z (IMO 9109512) shall be released by the respondent custom authority unless the conditions of furnishing of bond, bank guarantee and giving of undertaking before this court as directed above are satisfied. Satisfaction of those terms shall be operated as preconditions for permitting the cargo in question as well as the vessel to be permitted to leave. As far as the conditions of production of certification of unloading at the Mozambique Port, the time of four weeks is granted from the date of sailing of the vessel. 5.5 It is further directed that the petitioners in both the petitions shall file undertaking giving name, address and contact details of the authorized representatives of the petitioners in India who will be participating in the adjudication proceedings. Such authorized representatives shall also file an undertaking that they will co-operate in the adjudication proceedings. Such undertaking shall be filed within one week from today before this court. 6. Learned advocate for the respondents further stated that the authorities w ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
