Back
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B. PARDIWALA, NISHA M. THAKORE, JJ.
Green Gold Timbers Pvt. Ltd. - Appellant
Versus
Commissioner of Customs - Respondents
R/Special Civil Application No. 10082 of 2020
Decided on : 12-01-2022
Customs Act - Section 141 and Section 141 - Regulations - Regulation 6(1)(l) - Constitution of India - Article 226 - Writ-applicant has prayed to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ, order or direction, by declaring that, the detention charges imposed by respondent no. 2 and ground rent charges are unjust and illegal in terms of Regulations - To refund amount to be refunded by respondent no. 2 to be refunded by respondent along with interest as may be deemed fit by this Hon'ble Court to the petitioner in the interest of justice - whether customs cargo service provider is entitled to charge any rent or demurrage on goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or Examining officer, as the case may be – Held, Respondent No. 1 is under a legal obligation not to charge any rent or demurrage on the goods of the petitioner or on the container in which the goods have been stored and kept under its custody, it was also under a legal obligation to release goods kept under its custody on or before to enable the petitioner to re-export goods. Failure to do so has not only caused prejudice to the petitioner but would also disentitle respondent No. 1 from claiming any rent and demurrage for the period beyond till release of the goods because such retention of goods would be clearly unlawful being in violation of Regulation 6(1)(l) of the Regulations and the public notice dispute between petitioner and respondent No. 1 being contractual, petitioner should be relegated to the forum of civil court for obtaining relief, respondent No. 1 being a Government of India enterprise has to act in a responsible manner, being a Customs Cargo Service Provider, it is subject to the control of the officers of the customs department and cannot act in defiance of the law and of lawful directions of the customs authorities - We direct respondent No. 1 to release goods imported by petitioner vide bill of entry No. 7540462 dated 07.08.2018 kept in container forthwith to enable petitioner to re-export the same in terms of letter of Deputy Commissioner of Customs, Special Investigation and Intelligence Branch - Respondent no. 3, as the customs cargo service provider as defined in regulation No. 2(1)(b) of the Regulations, is not entitled in law to charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs - writ-application allowed.
Key Points: - The court held that the Customs Cargo Service Provider (Respondent No. 3) is not entitled to charge rent or demurrage on goods seized or detained by customs authorities, and that the provider must release goods to enable re-export (Regulation 6(1)(l) and public notice 26/2010) (!) (!) (!) . - The goods imported under bill of entry No. 7540462 dated 07.08.2018 detained from 14.08.2018 to 06.02.2019; the period is to be exempt from rent/demurrage charges, with release to re-export (!) (!) . - The court directed the release of goods forthwith and held that the petitioner is entitled to refund of rent/demurrage collected (Rs. 7,64,934) with four weeks deadline; respondent may seek other remedies for any other dues through proper forum (!) (!) .
JUDGMENT :
J.B. Pardiwala, J.
1. By this writ-application under Article 226 of the Constitution of India, the writ-applicant has prayed for the following reliefs:
(B) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, by declaring that, the detention charges of Rs.17,51,964/- imposed by respondent no. 2 and ground rent charges of Rs. 7,64,934/- imposed by respondent no. 3 are unjust and illegal in terms of Regulations, 2009;
(C) Your Lordships may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, directing respondent Nos. 2 and 3 to refund the amount of Rs. 25,16,898/- (Rs. 17,51,964/- to be refunded by respondent no. 2 and Rs. 7,64,934/- to be refunded by respondent no. 3) along with interest as may be deemed fit by this Hon'ble Court to the petitioner in the interest of justice;
(D) Your Lordships may be pleased to grant such other and further relief as may be deemed fit and proper in the facts and circumstances of the case."
2. We have heard Mr. Jigar Patel, the learned counsel appearing for the writ-applicant, Mr. Hardik Modh, the learned counsel appearing for the respondent no. 3 and Mr. Priyank Lodha, the learned standing counsel appearing for the respondent no. 1.
3. The short point that falls for our consideration is, whether the customs cargo service provider (respondent no. 3 herein) is entitled to charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive officer or Examining officer, as the case may be.
4. The aforesaid issue is no longer res integra in view of a recent decision of the Bombay High Court in the case of Sahaj Impex v. Balmer Lawrie & Co. Ltd. and another (Writ Petition No. 10492 of 2019 decided on 18th January 2021), wherein the Bombay High Court, from paragraph-15 onward, has observed as under:
15.1. As per sub-section (2), the person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force, shall keep a record of such goods and send a copy thereof to the proper officer; shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer or in such manner as may be prescribed.
15.2. Sub-section (3) deals with pilferation of imported goods in a customs area with which we are not presently concerned.
16. Section 141 of the Customs Act says that conveyances and goods in a customs area are subject to control of officers of customs. As per sub-section (1), all the conveyances and goods in a customs area shall, for the purpose of enforcing the provisions of the Customs Act, be subject to the control of officers of customs. Sub-section (2) says that the imported or export goods may be received, stored, delivered, despatched or otherwise handled in a customs area in such manner as may be prescribed and the responsibilities of persons engaged in the aforesaid activities shall be such as may be prescribed.
17. Section 157 of the Customs Act provides the general power to make regulations.
18. In exercise of powers conferred
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
