2018 (3) TMI 783 - HC - Customs

Court orders safety testing of imported children's toys, petitioner to bear costs

The court rejected the petitioner's argument against the applicability of a notification requiring safety testing of imported children's toys. It ordered ... Waiver of container detention and demurrage charges - N/N. 26/2015-20 dated 1.9.2017 - Regulation 6 (1)(I) of the Handling of Cargo in Customs Area Regulations 2009 - Held that: - the respondents shall draw representative samples of one(1) piece per variety. While drawing the samples, the customs house agent of the petitioner should be permitted to be present and after the samples are drawn, the same shall be sent to the approved laboratory for testing and on receipt of the test report, the respondents are directed to pass appropriate orders on merits and in accordance with law. It is needless to state that the cost of testing shall be borne by the petitioner, if the demand is raised on the petitioner and the advance payment is called for and the same shall be remitted. Petition disposed off. Issues:1. Petition for mandamus to clear goods under a specific Bill of Entry without considering a notification.2. Contention regarding the applicability of a notification issued by the Director General of Foreign Trade.3. Entitlement of the petitioner for release of the cargo containing children toys.4. Concerns regarding testing requirements for the cargo before release.5. Balancing the interests of the revenue department and the importer.6. Order for drawing representative samples for testing.7. Allocation of testing costs to the petitioner.Analysis:The petitioner sought a writ of Mandamus to direct the respondents, particularly the first respondent, to clear goods under a specific Bill of Entry without considering a notification and to issue a waiver certificate for container detention and demurrage charges. The Director General of Foreign Trade notification required testing of imported children's toys for safety before release in the domestic market. The petitioner argued that the notification, issued after dispatch, should not apply, but the court rejected this based on a previous decision. The main issue left was the entitlement of the petitioner for cargo release.Considering a recent notification mandating testing for public safety, the court acknowledged the need for testing the cargo, which includes various types of children's toys. The importer expressed concerns about the cost and viability of testing each toy category. The revenue department emphasized rigorous testing before release for home consumption.To address concerns from both sides, the court ordered the department to draw representative samples, limited to 15% of each toy variety, with the presence of the petitioner's customs house agent. These samples would undergo testing at an approved laboratory, and the department would decide on release based on the test report. The petitioner would bear the testing costs upon demand and advance payment.The court set a timeline for sample collection and testing, with a four-week testing period and a subsequent two-week decision period for the department. Once the report is received, the department must pass orders accordingly. The writ petition was disposed of with no costs, and related petitions were closed as a consequence of the judgment.