2021 (9) TMI 297

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....min Controllers Pvt. Ltd., agent of the petitioner and Cooperative Rabobank U.A., the financier on 20.10.2016 followed by a subsequent contract on 26.10.2016. In terms of the contracts the sugar was to be stored in the warehouses of Thiru Arooran Sugars/R3 and Shri Ambika Sugars Ltd./R4. 3. Admittedly, payment has been effected by R3 for approximately 12,727.79 Mts of sugar, which has been released and handed over to R3. The remainder of approximately 14,671.698 MT of sugar was imported by R4 in 2017 under an Advance Authorisation Scheme which obliterated the necessity for payment of customs duty. From out of the same, 2902 MT was released to R3 for refining. The latter component does not form part of the subject matter of this Writ Petition, as litigation in respect of the same is said to be pending before a Division Bench of this Court. What concerns this Court is the request for release and re-export of sugar of an extent of approx. 11,899.21 MT (commodity/sugar in question). 4. Subsequent to import and the warehousing of the consignment in their warehouses, both R3 and R4 are before the National Company Law Tribunal (NCLT) at the instance of corporate creditors, where Cor....

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....on 04.02.2020 seeking permission to re-export the goods, upon their release, yet pending. It is the petitioner's case that, being the owner of the goods, it is entitled to re-export, though on payment of necessary re-export charges. 9. Learned Senior Standing counsel appearing for the Customs Department would argue that such right to re-export is not automatic or unconditional as there are liabilities that attach to re-export, that are to be ascertained and discharged prior to the re-export being permitted. He would state that the Advance Authorisation Licence pertaining to the sugar in question has been issued in the name of R3 and thus the conditions that attach to that licence will have to be satisfied by the petitioner in order to entitle it to re-export. 10. Both learned counsel in this regard have referred to the decision in the case of Union of India V. Sampat Raj Dugar ((1991) 56 ELT 739 (Bombay High Court) and ((1992) 2 Supreme Court Cases 66)) (Supreme Court). 11. Before the Bombay High Court, the Union had filed an appeal challenging an order of the learned single Judge confirming the order of the Collector confiscating certain consignments imported upon arr....

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....ds covered by the consignments in question. The first respondent in that case, the importer, was held liable to pay demurrage to the Bombay Port Trust. 14. The Union of India carried the matter in appeal before the Supreme Court and at paragraph 19, the issues that arose have been decided as follows: 19. We may first consider the question of title to the said goods. If we keep aside the provisions of law relied upon by the appellants viz., definition of `importer' in Section 2(26) of the Customs Act, Clause 5(3) (ii) of the Imports (Control) Order as well as para 26 (iv) of the Import-Export Policy, the position is quite simple. Since the second respondent did not pay for and received the documents of the title she did not become the owner of the said goods, which means that the first respondent continued to be the owner. How do the aforesaid provisions make any difference to this position ? The definition of `importer' in Section 2(26) of the Customs Act is not really relevant to the question of title. It only defines the expression `importer'. The first respondent does not claim to be the importer. The provision upon which strong reliance is placed by the ....

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....ion to be placed upon the provision should be consistent with and should be designed to achieve such object. In this context, it should also be remembered that expressions like `Property of' and `Vest' do not have a single universal meaning. Their content varies with the context. The aphorism that a word is not a crystal and that it takes its colour from the context is no less true in the case of these words. In our opinion the object underlying condition (ii) in Clause 5(3) is to ensure a proper implementation of the Imports (control) Order and the Imports and Exports (Control) Act, 1947. The idea is to hold the licensee responsible for anything and everything that happens from the time of import till they are cleared through Custom. The exporter is outside the country, while the importer, i.e. the licensee is in India. It is at the instance of the licensee that the goods are imported into this country. Whether or not he is the owner of such goods in law, the Imports (Control) Order creates a fiction that he shall be deemed to be the owner of the such goods from the time of their import till they are cleared through Customs. This fiction is created for the proper and effec....