2018 (11) TMI 426 - HC - Customs

Court dismisses Petition on Customs Act order implementation due to importer's failure to prevent auction during appeal.

The Court declined to entertain the Petition seeking implementation of an order dated November 22, 2016, passed by the Commissioner of Customs (Appeals) ... Implementation of the order dated 22nd November 2016 - release of imported goods in terms of the order - Held that:- The Customs cannot be held responsible for the auction of the goods by the Container Freight Station All Cargo Logistic Limited after issue of the notice to the Petitioner, which the Petitioner chose not to respond - Besides even if we assume the contention of the Petitioner that there was a stay of the assessment order dated 22nd August 2016 in view of the Appeal filed by the Petitioner (without accepting the same) yet it would be the obligation of the importer to protect the goods from auction till disposal of the Appeal. This fact of pending Appeal resulting in automatic stay was also not brought to the notice of All Cargo Logistic Limited prior to the auction. Petition dismissed. Issues:1. Implementation of the order dated 22nd November 2016 passed by the Commissioner of Customs (Appeals) under Section 128A of the Customs Act, 1962.2. Auction of imported goods by the Container Freight Station before the order dated 22nd November 2016.3. Petitioner's claim for release of imported goods based on the order dated 22nd November 2016.Analysis:1. The Petition sought the implementation of the order dated 22nd November 2016 passed by the Commissioner of Customs (Appeals) under Section 128A of the Customs Act, 1962. The said order set aside the previous order dated 22nd August 2016 by the Additional Commissioner of Customs, which had enhanced the value of the imported goods and provided an option for redemption on payment of a fine.2. The Respondent argued that the goods had been auctioned by the Container Freight Station before the order dated 22nd November 2016 was passed. The Respondent contended that the Petitioner did not respond to notices from the Container Freight Station regarding the auction of the goods, and the Petitioner failed to take steps to prevent the auction despite claiming ownership of the goods.3. The Petitioner, on the other hand, argued that there should have been an automatic stay on the order under challenge once the Appeal was filed, citing Section 129E of the Act. The Petitioner claimed that it was the Customs' responsibility to ensure the goods were not auctioned until the Appeal was finally disposed of, as per Section 126 of the Act.4. The Court noted that the goods were imported in March 2016 and remained uncleared or unwarehoused for over 30 days. The Container Freight Station had informed the Petitioner about the auction of the goods before the assessment order was passed. The Court found that the Petitioner did not respond to these notices or attempt to warehouse the goods pending the final assessment, and thus, the Customs could not be held responsible for the auction.5. The Court concluded that even if there was a stay on the assessment order due to the Appeal, it was the importer's obligation to protect the goods from auction until the Appeal was resolved. The Court also highlighted that the goods were still available for redemption by the importer, and there was no time limit to redeem the goods before the amendment of Section 125 of the Act in 2018.6. Based on the facts presented, the Court declined to entertain the Petition and dismissed it with no order as to costs.