TaxTMI 
TaxTMI 
2015 (10) TMI 2619
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....equential orders for refund together with appropriate interest. The petitioner has also sought for a writ of mandamus commanding the 2nd and 3rd respondents to assess customs duty as per the provisions of the Baggage Rules, as applicable to Non-resident Indians (NRIs) who avail Transfer of Residence benefit, with consequential orders for refund together with appropriate interest. 2. Going by the averments in the writ petition, the petitioner who was employed in Gulf countries decided to bring his used household items as unaccompanied baggage by availing Transfer of Residence benefit available to NRIs. Since the container for transporting the household items were not readily available with the shipping agency, the petitioner entrusted his household items to his friend Sri Abdul Aziz and requested him to arrange its shipment to India. However, due to an inadvertent mistake, the shipping agent at the port of loading issued Ext.P1 Bill of Landing (B/L) dated 11-9-2004 showing the said Abdul Aziz as the shipper and one Saji Hameed as the consignee. When the petitioner approached the clearing agent at Cochin Port he was informed the necessity of obtaining an amended B/L in his na....
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....rein that, he is prepared to pay the requisite customs duty and also execute a bond for the amount equivalent to the value of the goods to indemnify the Department, in the event of any claim being made by M/s. Abdul Aziz and Saji Hameed, whose names were shown in Ext.P1 B/L. Further, the petitioner is prepared to give up his claim for demurrage charges from the 2nd respondent herein, for the period during which the goods have been lying in the Port. A memo to that effect was also filed before this Court. After considering the rival submissions, the Division Bench held that, the 2nd respondent herein has not stated any cogent reasons as to why the IGM cannot be amended, as requested by the petitioner herein, and in that view of the matter, Ext.P8 order passed by the 2nd respondent herein cannot be sustained. In the result, the writ appeal was disposed of, directing the 2nd respondent to amend the IGM in terms of the amended B/L issued by the port of loading and release goods to the petitioner herein on payment of customs duty, demurrage charges, etc., on the petitioner furnishing bank guarantee for an amount equivalent to the value of the goods. 5. As regards the demurrage c....
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.... Ext.P12 judgment, the 2nd respondent allowed amendment of IGM and accordingly, the petitioner filed Ext.P16 International Passenger Baggage Declaration No. 558, dated 16-2-2005. The request made by the petitioner in Ext.P13 representation to issue detention certificate was turned down by the 2nd respondent on the ground that, the question of issuance of detention certificate does not arise since the goods were not detained by the Customs. The 2nd respondent has also pointed out that, in Ext.P12 judgment, this Court has not directed the said respondent to issue any detention certificate. Therefore, the petitioner was adviced to approach the office of the 2nd respondent after settling the demurrage issue with the 1st respondent. 8. Alleging import of goods in commercial quantity without import licence, confiscation proceedings were initiated against the petitioner under Section 11(d), (i), (m) and (o) of the Customs Act, 1962, read with Section 3(3) of the Foreign Trade (Development and Regulation) Act, 1992 and he was allowed, vide Ext.P18 order dated 14-3-2005, an option to pay a fine of Rs. 50,000/- in lieu of confiscation of the goods valued at Rs. 60,600/-, under Sectio....
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....the IGM, which was turned down in Ext.P5 communication issued by the 2nd respondent on the ground that, the serial numbers of both Bs/L are different. Ext.P5 was followed by Ext.P8 communication in which the request for amending the consignee's name and address against L. No. 72 of IGM was turned down on the ground that, there is no indication available in Ext.P1 B/L to prove that the shipped goods are the personal effects of the petitioner. Further the identity of M/s. Abdul Aziz and Saji Hameed and also the authenticity of the letter obtained from Sri Saji Hameed could not be verified. The petitioner approached this Court in W.P. (C) No. 588 of 2005, seeking a writ of mandamus commanding the 2nd respondent to amend the B/L in his name and to allow him to clear the items on payment of customs duty. He has also sought for a writ of mandamus commanding the 2nd respondent to issue detention certificate for the entire period of delay, for claiming concession on the demurrage charges. The said writ petition was dismissed by Ext.P10 judgment, without prejudice to the right of the petitioner to prefer an appeal against Ext.P8 order, under Section 128 of the Customs Act. 12. Howev....
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....Indian Goods Supplying Co. [1977 (2) SCC 649] a Three-Judge Bench of the Apex Court held that, Chapter VII of the Port Trust Act enumerates the powers and functions of the Board. It is the duty of the Board to recover the rates to have a lien on the goods and seize and detain the goods until such rates are fully paid. The Board is empowered to sell the goods if rates are not paid or lien for freight is not discharged. It can also dispose of goods not removed from the premises of the Board within the time limited. Section 65 of the said Act also provides the mode of application of proceeds of the sale. Under Section 66 the Board is entitled to distrain for non-payment rates. The Port clearance shall not be granted till the rates are paid. It is thus a statutory duty of the Board to collect the rates prescribed. The Apex Court held further that, even though the delay in clearing the goods was not due to the negligence of the importer, for which he could be held responsible, yet he cannot avoid the payment of demurrage as the rates imposed are under the authority of law the validity of which cannot be questioned. The law laid down in Indian Goods Supplying's case (supra) was reiterate....
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....k guarantee for an amount equal to the value of the goods. In Ext.P12 judgment, this Court has also recorded the submission made on behalf of the petitioner that, he is prepared to give up his claim for demurrage charges from the 2nd respondent, for the period during which the goods have been lying in port, and a memo to that effect was also filed before this Court. In that view of the matter, the decision cited in the argument note submitted by the learned counsel for the petitioner will not come to his rescue. 16. The request made by the petitioner to issue detention certificate, in order to claim concession in demurrage charges was declined by the 2nd respondent in Ext.P17, on the ground that the question of issuance of detention certificate does not arise since the goods were not detained by the Customs Department. The specific stand taken by the 1st respondent in Ext.P15 is that, as per the guidelines issued by the Ministry and as per the Scale of Rates, there is no provision for waiver of demurrage charges, as waiver of demurrage charges could be considered only in cases in which the Customs has detained the cargo and a certificate to that effect has been issued by th....
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.... a Notification (SRO No. 82/2006), dated 21-1-2006 notifying the list of goods specified therein to be taxable at the rate of 12.5% could have retrospective effect or retro-active operation. In that context, the Apex Court held that, being a jurisdictional fact, it should have been determined by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. 19. However, in the case on hand, no such jurisdictional issues are involved. The petitioner, in order to succeed in the challenge made against Ext.P18 order, will have to establish that he is eligible to claim Transfer of Residence benefit provided under Rule 8 of the Baggage Rules, 1998 and that the goods in question are his used personal and household articles, to the extent mentioned in column (1) of Appendix F, subject to the conditions, if any, mentioned in the corresponding entry in column (2) of the said Appendix. Ext.P16 baggage declaration made by the petitioner contains the description of the articles. It was based on the declaration so made, the 3rd respondent in Ext.P18 order came to the conclusion that, the goods in question are liable to be confiscated for violation of ....