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TMI Blog2023 (12) TMI 1022X X X X Extracts X X X X X X X X Extracts X X X X ..... in and the authenticity and validity of any document supporting it and compliance with the restriction or prohibition, if any, relating to the goods. It appears that on account of price difference between the supplier invoice and manufacturer invoice, the respondents are contending that the petitioner has not ensured the accuracy and completeness of the information given therein - one cannot say that the petitioner has not given accurate and complete information with respect to the price difference. The petitioner has filed the documents in support of its explanation which has not been rebutted by the respondents, and therefore reliance placed by the respondent Nos. 1 2 on Section 46(4A) of the Customs Act is not appropriate to deny the issuance of detention waiver certificate. In the instant case, the demurrage could have been avoided if after removing the goods for testing, same were directed to be shifted to warehouse under Section 49 of the Act. The petitioner on 13th January 2021 sought such permission and which was immediately granted but the same could have been done when the goods were detained for investigation. Therefore, respondent Nos. 1 2 were not justified in n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, calling for the records of the case pertaining to the Petitioner case and after going into the legality and validity direct the Respondent No. 2 to reimburse/refund the detention charges amounting to Rs. 46,96,695/- paid by the petitioner to Respondent No. 3 forthwith, along with interest thereon @ 18% p.a.; 3. Narrative of Events - (i) The petitioner is engaged in the business of importing agrochemicals and selling insecticides in India. (ii) On 19th/20th December 2020, the petitioner filed Bill of Entry No. 9964993 dated 15th December 2020 (a new Bill of Entry was numbered as 2773198 dated 15th February 2021) for import of 17 containers containing goods namely BUTACHLOR. The said goods were imported from China. (iii) On 13th January 2021, the Commissioner of Customs, Nhava Sheva addressed a letter to respondent No. 2 granting permission to shift the said goods to a bonded warehouse under Section 49 of the Customs Act, 1962. This permission was granted pursuant to the petitioner s letter of even date. (iv) On 18th January 2021, the petitioner addressed a letter to respondent No. 3 recording that the petitioner has obtained permission for temporary b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as per paragraph 2.1 of CBIC Circular No. 35/2017. The said letter records that the estimated differential duty of the seized goods is Rs. 3,59,789/-. The said letter also records that the petitioner requested for provisional release of these goods vide letter dated 5th February 2021. (xi) The petitioner has annexed to the petition various e-mail correspondence with respondent No. 3 with respect to detention charges. (xii) On 8th July 2021, the petitioner requested respondent No. 2 for waiver of detention charges against the bill of entry. The said letter records that the delay of almost 2 months to complete the investigation process was attributable to the investigating authorities which has resulted into huge detention and demurrage charges. Such letter also recorded that a similar request was made for waiver by petitioner s earlier letters dated 29th January 2021 and 5th February 2021. The petitioner, therefore, requested respondent No. 2 to grant waiver of detention charges of Rs. 46,96,695/-. 4. It is in the above backdrop that the petitioner has approached this Court seeking appropriate directions against respondent No. 2 for issuance of a detention waiver c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... contended that the petitioner should have applied for de-stuffing of the goods in public warehouse to mitigate the loss. Respondent No. 3, therefore, submitted that no order be passed against them. Analysis and Conclusion 9. The only issue which falls for our consideration is whether in the facts of the present case, Respondent No. 2 was justified in not issuing detention waiver certificate ? 10. The procedure for issue of Detention Certificate is notified in Public Notice No. 111 of 1985 dated 29.07.1985 of the Bombay Custom House issued much prior to the Handling of Cargo in Customs Area Regulations, 2009. Paragraph 2 of the Public Notice No. 111 of 1985 sets out the circumstances under which a regular detention certificate could be issued by the Customs House for facilitating the importers to get remission of demurrage charges. They are as under :- (a) Where the goods are detained by Customs House for bona fide operation of import control formalities without any default on the part of the importers. (b) Where the goods have been released on caution (a regular detention certificate and not a recommendatory letter). (c) Where the goods are detaine ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l) not demand any container detention charges for the containers laden with the goods detained by customs for purpose of verifying the entries made under Section 46 or Section 50 of the Act, if the entries are found to be correct. 14. The contention of respondent Nos. 1 2 is that on account of mis-declaration of value of goods, the entries found in the bill of entry are not correct, and therefore, the waiver certificate could not be issued. In our view, this contention is to be rejected. The petitioner vide letter dated 15th February 2021, explained the difference between the price mentioned in supplier s invoice and manufacturer s invoice on the ground that it is due to export incentive received from the supplier. The petitioner also enclosed comparative chart of the suppliers costing chart with export incentive and local price from supplier without incentives in support of its contention and also uploaded clarification letter in that regard. Respondent Nos. 1 2 have not rebutted the same, therefore, respondent Nos. 1 2 cannot contend that the entries in bill of entries are found to be incorrect. 15. Respondent Nos. 1 2 have also relied on Section 46 (4A) of the C ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 450/61/93-Cus.. IV Government of India Ministry of Finance, Department of Revenue Central Board of Excise Customs, New Delhi Subject: Customs detention of imported cargo at ports - Instruction regarding I am directed to say that the matter of long detention of cargo including containerised cargo at various ports by the Customs authorities leading to port congestion as well as hold up of containers has been represented at various forums. This issue has also come up for discussion in the last Scope Shipping meeting recently held in Bangalore. 2. The matter has been examined by the Board and it is observed that at times the customs is detaining the imported cargo along with containers in which it has been unloaded for the purpose of investigation. The Directorate of Revenue Intelligence is also insisting upon detention of imported cargo till such time as the enquiry / investigation undertaken by it is completed. It is the view of the Board that for facilitating investigation the detention of the imported cargo may be necessary at times. However, this should not be at the cost of hardship to other importers or the container agents a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted 10th September 2021 issued by the Central Board of Indirect Taxes and Customs also reiterates what is stated above. Relevant paragraph 2.2 of the said instruction reads as under :- Instruction No. 20/2021-Customs 2.2. Field formations follow the spirit of para 5 of Board Circular 83/98-Customs dated 5.11.1998 and para 3 of Board Circular No.84/95-Cus dated 25.07.1995 thereby taking proactive steps such that containers housing import cargo that is under enquiry are expeditiously released. For this, provision already exists that whenever it becomes necessary to detain the imported cargo, pending completion of enquiry/investigation, such cargo should be removed to a customs warehouse in terms of the provisions of Section 49 of the Customs Act, 1962. For this purpose, the cargo can also be removed from the container and the container can be released for further use. The field formation should encourage this activity by offering it to the importers. 20. In our view, on a reading of the above referred circulars and instructions, respondent Nos. 1 2 ought to have immediately informed the petitioner that the goods may be stored in public warehouse pending clearance ..... X X X X Extracts X X X X X X X X Extracts X X X X
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