Reasoned orders mandatory for rejecting demurrage waiver requests; remand for considering SEZ applicability.

ORDER

The present writ petition is filed challenging the impugned letter dated

02.11.2022, whereby petitioner’s request for waiver of demurrages until the goods are made available for clearance was rejected.

2. It is submitted by the learned counsel for petitioner that the impugned orders are challenged on the ground that the order of rejection of petitioner's request for waiver of demurrages does not assign any reasons, therefore it may not be necessary to get into the facts in great detail except to state the following:

a. Petitioner filed an SEZ Bill of Entry 2005430 for clearance of goods i.e., “mini tower computer case with power supply accessories”. The subject goods were imported from M/s.Leading Nations (Group) Limited, Hong Kong, on 17.03.2020. On 06.03.2020, goods were examined by the Officers of the 2^nd respondent and it was found that the said container contained “used/ old mini tower computer cases with motherboard/ system board”.

b. On 18.03.2020, the petitioner had taken up the issue with foreign supplier, who had sent a letter clarifying that the said container was intended to be shipped to a different buyer and the same was wrongly shipped to the petitioner. Thereafter, the foreign supplier had requested the petitioner to send the container.

c. The 3^rd respondent had adjudicated the issue and passed the order-in-

original No.526/2020-AIR, wherein he had permitted the petitioner to re-export the goods on payment of redemption fine of Rs.4,20,000/- under Section 125 of the Customs Act, 1962 and imposed a penalty of Rs.2,00,000/- under Section

112(a) of the Customs Act. 1962.

d. On 09.10.2020, petitioner preferred an appeal and paid redemption fine and penalty vide TR6 Challan No.000017. Pursuant thereto, 2^nd respondent had issued detention certificate recommending waiver of demurrage and detention charges for the period 27.02.2020 to 16.10.2020. The Commissioner Appeals passed the order-in-Appeal No.83/2021 dated 26.02.2021 wherein he had rejected the re-export granted by the 3^rd respondent and confiscated the goods.

3. According to the petitioner, order of the appellate authority directing confiscation in the appeal filed by petitioner challenging the redemption fine and penalty was without jurisdiction. Aggrieved, petitioner preferred an appeal before the Tribunal vide order dated 10.02.2022, wherein the Tribunal had set aside the order-in-appeal and permitted the goods to be re-exported and had also set aside the fine and penalty.

4. Learned counsel for 4^th respondent would submit that they are warehousing unit inside SEZ and therefore question of waiver of any demurrages payable to them in terms of Handling of Cargo and Customs Area Regulation, 2009, may not even be applicable.

5. To a pointed question as to whether these issues have been examined while considering petitioner’s request for waiver of demurrages, this Court finds that the learned Senior Standing Counsel for respondents would only place reliance on the counter, which does not appear to address these issues.

6. In that view of the matter, this Court is inclined to dispose of the writ petition with the following directions:

i) The impugned order dated 02.11.2022 is set aside and the matter is remanded back to the respondents for fresh consideration.

ii) It is open to the petitioner to submit their response by treating the impugned orders as show cause notice(s) within a period of 2 weeks from the date of receipt of a copy of this order.

iii) It is open to the 4^th respondent to explain as to how they may not fall within the purview of Handling of Cargo in Customs Area Regulations, 2009, and thus no waiver certificate could be issued in respect of the demurrages which may be charged by them from the petitioner by sub