2018 (3) TMI 1101 - HC - Customs

Court Quashes Customs Order, Directs Special Order Issuance

The court quashed the order dated 11.08.2017 by the Commissioner of Customs, Bhubaneswar, finding it based on an erroneous understanding of the law. The ... Authorization under the Export Promotion Capital Goods (EPCG) Scheme and the Foreign Trade Policy (FTP) 2015-20 to import three Grab Type Ship Unloaders (GTSU) from Shanghai Zhenhua Heavy Industries Co. Ltd., China for installation at its port located at the mouth of river Dhamra in the State of Odisha - Port of registration - Port of import - It is averred that the intent behind import was to provide import facility for import of lime stone and thermal coal and various other cargo which require deep draught berths, equipped with mechanized handling and for such purpose, the essential sophisticated handling equipments like ship loaders, unloaders were required for the purpose - effect of Special Order issued by the Commissioner, whether prospective or retrospective? whether the Commissioner of Customs was right in rejecting the petitioner’s-company application under Proviso to Para-10 of the N/N. 16/2015-Cus dated 01.04.2015? Held that: - It is clear from the Notification as well as the Customs Act that any “Special Order” issued by the Commissioner would only, obviously be prospective and cannot be retrospective, in any event. Therefore, in the present case, it appears that the learned Commissioner has acted on an understanding that since the goods in question being imported under the EPCG Scheme had already been “unloaded” at Dhamra Port, the “Special Order” that he would issue would have to be retrospective to cover the date of unloading. This in our considered view is not consistent with the requirements of the Customs Act, 1962 nor with the relevant Notification No.16/2015- Cus dated 01.04.2015. The Notification No.16/2015-Cus dated 01.04.2015 has been issued by the Government of India in the Ministry of Finance (Department of Revenue) and the Central Board of Excise and Customs. There can be no doubt that the Commissioner of Customs has been vested with the necessary authority under the Proviso to Para-10 above to permit import through any other sea-port within his jurisdiction not covered under Table-2 - the Commissioner of Customs, Odisha has the necessary jurisdiction to issue “special order” for permitting import through any other sea-port (other than though sea-port mentioned in Table 2) subject to such sea-port being within his territorial jurisdiction. Even though the petitioner’s imported goods have been unloaded at Dhamra port, any “special order” by the Commissioner of Customs would obviously be effective from the date of such grant of permission, since it is only after the Commissioner grants such “special order”, that the petitioner can seek customs clearance of the goods and until such clearance is sought for and granted, the goods remain “in course of import” though physically located at Dhamra port but without obtaining the necessary clearances from the Customs Authorities as mandated under the Customs Act. The petitioner-company i.e. Dhamra Port is admittedly a “customs port”, at the relevant time through the Dhamra Port did not find mention in Table-2 to the Notification dated 01.04.2015 and, consequently, even in its EPCG License had mentioned Paradeep Port (as the port of registration). Accordingly, when the imported goods under the EPCG License arrived at the outer harbour of Dhamra port, necessary permission were sought for from the Customs Authority for berthing of the vessel and necessary permissions were obtained. Thereafter, the “import manifest” was placed with the Dhamra Customs Authorities and necessary permission was granted. In the meantime, the Customs Authorities at the port of registration i.e. Paradeep had granted the necessary TRA for the imported cargo and the cargo commenced unloading on 09.05.2016 (evening) i.e. admittedly, the very same day the Commissioner of Customs claims to have received the petitioner’s application for grant of “special order” as contemplated under Proviso to Para-10 of the notification No.16/2015-Cus dated 01.04.2015. The Union of India should issue necessary guidelines to the Authorities vested with such quasi judicial power to take decisions on such applications within a minimum period which the Government of India would consider appropriate. Since in the case at hand, the petitioner-importer having been saddled with such huge financial liability has not been granted permission to clear the goods and utilize in any manner, which this Court is of the considered view is nothing less than national waste by itself, whereas, the goods lie at the port site and have not been utilized by the petitioner, in the absence of a “special order” as contemplated as noted hereinabove. The situation remains in limbo for more than fifteen (15) months and now at this belated stage there is no way in which the petitioner can be compensated. Therefore, this Court calls upon the Finance Ministry of the Union of India to take note of the fact situation that arises in the present case and pass necessary instructions/guidelines either through the Ministry or the CBEC as it may deem appropriate, in order to ensure that such large scale wastage of time and public money does not occur in future cases. The impugned order dated 11.08.2017 under Annexure-1 stands quashed with a further direction to the Commissioner of Customs to issue the necessary “special order” in favour of the petitioner forthwith - Application allowed. Issues Involved:1. Validity of the order dated 11.08.2017 by the Commissioner of Customs, Bhubaneswar.2. Authorization under the Export Promotion Capital Goods (EPCG) Scheme and Foreign Trade Policy (FTP) 2015-20.3. Import and clearance procedures under the EPCG Scheme.4. Jurisdiction and authority of the Commissioner of Customs under Notification No.16/2015-Cus dated 01.04.2015.5. Retrospective vs. prospective application of the 'special order' under Para-10 of Notification No.16/2015-Cus.6. Compliance with customs procedures and permissions.7. Impact of delay in decision-making by customs authorities.8. Requirement for revalidation of EPCG licenses.Detailed Analysis:1. Validity of the order dated 11.08.2017 by the Commissioner of Customs, Bhubaneswar:The petitioner, Dhamra Port Company Limited (DPCL), challenged the order dated 11.08.2017, which rejected their request for a 'special order' under Para-10 of Notification No.16/2015-Cus. The court found that the Commissioner’s decision was based on an erroneous understanding of the provisions of the Customs Act, 1962, and the Foreign Trade Policy (FTP) 2015-20. The Commissioner incorrectly concluded that the 'special order' could not be issued retrospectively, which was not consistent with the law.2. Authorization under the Export Promotion Capital Goods (EPCG) Scheme and Foreign Trade Policy (FTP) 2015-20:The petitioner sought authorization under the EPCG Scheme to import three Grab Type Ship Unloaders (GTSU) from China. The EPCG Scheme allows for the import of capital goods at zero customs duty, subject to an export obligation of six times the duty saved within six years. The petitioner was granted the necessary EPCG authorization on 13.05.2016.3. Import and clearance procedures under the EPCG Scheme:The petitioner followed the necessary procedures, including applying for docking permission, filing the Import General Manifest (IGM), and obtaining inward entry permission from the Customs Authorities at Dhamra port. However, the Commissioner of Customs rejected their request for a 'special order' to clear the goods under the EPCG Scheme, citing procedural issues.4. Jurisdiction and authority of the Commissioner of Customs under Notification No.16/2015-Cus dated 01.04.2015:The court clarified that the Commissioner of Customs has the authority under Para-10 of Notification No.16/2015-Cus to permit import through any other sea-port within his jurisdiction. The Commissioner’s refusal to grant the 'special order' was based on a misunderstanding of his jurisdiction and authority.5. Retrospective vs. prospective application of the 'special order' under Para-10 of Notification No.16/2015-Cus:The court held that any 'special order' issued by the Commissioner would be prospective and not retrospective. The Commissioner’s concern that the order would be retrospective was unfounded, as the goods remained within the customs area and had not been cleared by the Customs Authorities.6. Compliance with customs procedures and permissions:The petitioner complied with all necessary customs procedures, including obtaining permissions for berthing and unloading the vessel, and registering the imported goods with the port of registration (Paradeep). The court found that the Commissioner’s objections on procedural grounds were factually incorrect.7. Impact of delay in decision-making by customs authorities:The court expressed concern over the delay of more than fifteen months in deciding the petitioner’s application for a 'special order.' The delay resulted in significant financial loss and wastage of resources, as the imported goods valued at over Rs. 230 crores remained unutilized.8. Requirement for revalidation of EPCG licenses:The court noted that since the goods had already arrived at Dhamra Port within the period specified in the license, there was no requirement for revalidation. The Director General of Foreign Trade (DGFT) had no objections to the petitioner’s request and would grant any necessary extensions if required.Conclusion:The court quashed the impugned order dated 11.08.2017 and directed the Commissioner of Customs to issue the necessary 'special order' in favor of the petitioner forthwith. The court emphasized the need for pragmatic decision-making by authorities to prevent financial loss and wastage of resources. The writ application was allowed with the directions issued.