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TMI Blog2002 (5) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... on to the handling of containers by the Customs Authority, particularly, when the containers are detained on account of certain investigation with regard to the goods contained in such containers. Relying thereon, he contends that the containers should be released. The shipping agent and the exporter were not made party to the proceedings. In course of hearing, it appeared that the presence of the exporter and the shipping agent is necessary and they are proper parties. Therefore, on oral prayer, leave was granted to add them as parties to the proceedings. These two respondents had appeared and contested the application. Since this matter was related to the validity of the investigation, subject matter of Writ Petition No. 145 of 2002, therefore, this was directed to be listed along with other matters and were heard one after the other. Submission on behalf of the Petitioners : 2. Learned Counsel for the petitioners contends that the containers are not subject matter of investigation and as such it cannot be detained. The containers cannot be confiscated, even if there is violation of the Customs Act 1962 by the exporter. It is only the goods or the packages that could be confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tuffed in the containers. Container has a different connotation than packages. Package means something within which certain quantity of goods is packed. This may vary according to the quality or quantity or size or character of the goods or materials packed. A package for liquid may differ from a package for solid or semi solid. It not only differs from the kind of materials used for packaging but also differs in sizes and other matters dependent on the goods packed. Whereas containers are of particular specific dimension in which packages of goods are to be stuffed for importation or exportation as the case may be. Containers are supplied by ship owners or their agents for stuffing the consignment by the intended shippers for being loaded in the vessel. The container is a receptacle for the purpose of transport or extended portion of the ships. Containers are used for the purpose of safe passage of the packages. Therefore, the containers stand on a different footing than packages. Therefore, under Section 118, though packages can be confiscated, but not the containers. In AP. Muller (Maersk Line) v. Collector of Customs (Preventive), Bombay, 1994 (69) E.L.T. 425 (Tribunal), simila ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Central Warehouse at Vizag or it has to be brought to Kolkata. But the cost is to be borne either by the petitioner or by the exporter, as the case may be. It also does not want to undertake destuffing of the goods least, it may be alleged by the exporter that the Customs Authority had not properly maintained the goods or might raise some claim in respect thereof. But, these are not questions with which the owner of the containers can involve itself. These are not questions with which the owner of the container is concerned. If the law permits detention or seizure of the goods, if law permits storing or such goods in warehouses or such other place, in that event, it is open to the Customs Authority to do it. The Customs Authority under the law can detain the goods, confiscate the goods. But as observed earlier, it is not supposed to detain the container, nor it can confiscate the same. 5.4 The Customs Authorities were alive to this situation and had issued such Circulars. One such Circular was issued on 25th of July, 1995 by the Ministry of Finance, Department of Revenue, Central Board of Excise and Customs. There, it was instructed that the containers should not be detained long ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... export the imported containers within six months. Moreover, extension beyond six months is granted by Customs from time to time routinely. Ministry of Commerce have requested that in addition to close monitoring, bank guarantee be taken for import of containers. 2. On the issue of clearance of containerised cargo and re-export of marine containers, the attention is drawn to Board's earlier Circular F. No. 434/17/94-Cus. IV, dated 16th May, 1994. The Notification No. 104/94 as amended by Notification No. 101/95, dated 20-5-1995 exempts the freight containers of durable nature from payment of whole of the duty of Customs and the whole of additional duty payable provided the containers are re-exported within six months for which a bond is executed by the importers or the shipping agent. It was stressed in the Circular dated 16-5-1994 that extension may not be given routinely. 3. It has been observed that as and when request for extension beyond 6 months period is received, the Customs House are routinely granting such extensions. This casual approach leads to the possibility of use of such containers for domestic trade in addition to affecting the domestic industry engaged in manu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. The same principle will apply if it is stored in the Central Warehouse or any other warehouse. Chapter IX of the Customs Act provides for warehousing. It has provided for detailed provision of warehousing of goods. The entire provision deals with imported goods or dutiable imported goods, as the case may be. But in case of necessity, the said provision may also apply to goods meant for exportation or which are subjected to investigation, even though it may not be imported goods or it may not be dutiable goods. 5.9 In Khwaja Nazir Ahmed v. King Emperor, AIR 1936 PC 253, the Privy Council had laid down that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. This decision was relied upon by Mr. Mullick in order to strengthen his submission with regard to the release of the container and justification of the initiation of the investigation. Inasmuch as, unless there are provisions provided for such an action in respect of 'export goods', the jurisdiction cannot be exercised. The said proposition cannot be questioned. But, in the present case, as discussed above, on the materials disclosed before this Court, the liabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X
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