9911796707
TMI Blog2004 (1) TMI 86X X X X Extracts X X X X X X X X Extracts X X X X ..... or home consumption. The goods did not belong to Shiv Ganga Organic Chemicals Ltd. Thus, the Bill of Entry sought to have been registered in the name of the petitioner by the respondents and the petitioner ought to have been permitted to clear the goods on the filing of such Bill of Entry and on payment of appropriate duty of customs. In the present case also, it is clear that the petitioner has not committed any illegality in ''importing'' the goods in question and, therefore, it cannot be saddled with the liability of payment of demurrage. Therefore, as in the case of Om Paper Chemicals (supra), it is the Customs Department which should be directed to bear the demurrage. Thus, the writ petition is allowed. The respondents are directed that the order of amendment of the manifest by the Deputy Commissioner dated 25-3-2001 be restored and the goods be allowed to be cleared by the petitioner upon the Respondents' registering the Bill of Entry in the name of the petitioner and on payment of appropriate duty of customs. It is further directed that the Customs Department shall bear the demurrage charges in respect of the goods in question from 28-3-2001 (viz. the dat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lier consignee, i.e. Shiv Ganga Organic Chemicals Ltd. had already filed Bills of Entry against the said Import General Manifest. This aspect will be considered later. At this stage, it is relevant to note that no connection whatsoever had been established between the petitioner and the said Shiv Ganga Organic Chemicals Ltd. 6.Thereafter, the petitioner approached the Customs Authorities for registering the Bill of Entry in its name for clearance of the said imported zinc ingots from Singapore. The Customs Authorities refused to register the Bill of Entry on the intervention of the Department of Revenue Intelligence on the purported grounds that a Bill of Entry had already been filed by Shiv Ganga Organic Chemicals Ltd. and the latter was involved in some customs offence case and investigations were going on in respect thereof. It is an admitted position that there was no restriction of import of zinc ingots, no allegation of under-valuation and the petitioner was through-out prepared to pay the full duty. However, the Bill of Entry was not registered in the name of the petitioner, treating the said goods as ''offending goods'' which were allegedly liable for confiscation. The reas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ltd. itself indicates that in Paragraph 8 thereof it is stated as under :- Meanwhile, it was gathered that M/s.''8. Shiv Ganga Organic Chemicals Ltd. had filed six Bills of Entry having Nos. 101497-101499 both dated 6-2-2001 and 101827, 101831 all dated 13-2-2001 for duty free clearance of Zinc Ingots under DEEC Scheme against DEEC licence No. 0510031327, dated 31-1-2001. The said containers were examined in the presence of Customs House Agent, DRI officers and Customs officers of ICD, Tughlakabad, New Delhi on 13-2-2001. However, nothing incriminating was noticed during examination. The proceedings of the examination report were recorded as a 'fact report' dated 13-2-2001." The aforesaid paragraph of the show cause notice clearly indicated that nothing incriminating was noticed during the examination of the goods in question when they were so examined on 13-2-2001. The learned Counsel for the petitioner further submits that the show cause notice refers to certain export goods and has no relevance whatsoever to the imported goods under consideration. 9.It has further been submitted on behalf of the petitioners that Section 2(26) of the Customs Act, 1962 defines ''importer'' to incl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an importer abandons the imported goods and does not pay for them he cannot be treated as the owner of the goods. The Supreme Court held as under :- We may first consider the question of"19. title to the said goods. If we keep aside the provisions of law relied upon by the appellants viz., definition of 'importer' in Section 2(26) of the Customs Act, Clause 5(3)(ii) of the Imports (Control) Order as well as Para 26(iv) of the Import-Export Policy, the position is quite simple. Since the second respondent did not pay for and receive the documents of the title she did not become the owner of the said goods, which means that the first respondent continued to be the owner....... xxxx xxxx xxxxxxxx xxxx .......The exporter is outside the country, while the importer, i.e. the licensee is in India. It is at the instance of the licensee that the goods are imported into this country. Whether or not he is the owner of such goods in law, the Imports (Control) Order creates a fiction that he shall be deemed to be the owner of the such goods from the time of their import till they are cleared through Customs. This fiction is created for the proper and effective implementation of the said order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hemicals Ltd. In these circumstances, the Bill of Entry sought to have been registered in the name of the petitioner by the respondents and the petitioner ought to have been permitted to clear the goods on the filing of such Bill of Entry and on payment of appropriate duty of customs. 13.The other cases referred to by Mr. Asthana on this point were those of the Tribunal and need not be adverted to in detail inasmuch as they merely follow what has been held by the Supreme Court in the case of UOI v. Sampat Raj Dugar (supra). It is clear that when an importer fails to pay for the goods and abandons them, the ownership of the goods continue to vest in the foreign supplier unless he is proved to be a party to any fraud or the payment for the goods stands guaranteed to him by virtue of a letter of credit or otherwise. As already indicated above there is no fraud alleged against the foreign supplier and, secondly the payment of the goods was to be on the basis of cash against delivery and did not stand guaranteed to the supplier by virtue of a letter of credit or otherwise. This being the position, it is clear that when Shiv Ganga Organic Chemicals Ltd. abandoned the goods and failed to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ered in negative. The decisions of the Apex Court therefore are authorities for the proposition in certain situation, the court may direct the customs authorities to bear the demurrage charges. In the instant case the customs authorities still insisted that the goods were illegally imported. It sought to justify its stand even before this Court. This Court is not only a court of law but also a court of equity. In a situation of this nature we are of the opinion that this court may find that in place of the importer or the consignee, the customs authorities should bear the charges. Once it is held that the petitioner herein has not committed any illegality in importing the goods in question, in our opinion, it cannot ordinarily be saddled with the liability of payment of demurrage. The petitioner in the fact situation of this case must be held to have been sinned against than sinning. In U.O.I. v. Sanjeev Woollen Mills - [1998 (100) E.L.T. 323 (S.C.) = (1998) 9 SCC 647], the Apex Court in the fact situation obtaining therein held that demurrage may not be paid by the importer.'' In the present case also, it is clear that the petitioner has not committed any illegality in ''importing ..... X X X X Extracts X X X X X X X X Extracts X X X X
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