TaxTMI 
TaxTMI 
2022 (1) TMI 1020
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....nce license and permit the purchaser or its nominee holding a valid advance license to process and re-export the cargo; (b) Issue a writ of mandamus or any other appropriate writ, order or direction to permit the petitioner to re-export the cargo 'as is; and direct respondent no.4 to waive requirement of processing and re-export under advance license no.0510402686 dated 24.05.2017; (c) Issue appropriate writ, order or direction to restrain respondent no.3 from seizing the cargo currently lying in a warehouse at Gandhidham or demanding and/or enforcing customs duty in respect of the subject cargo against the petitioner; (d) That pending the hearing and final disposal of this petition, this Hon'ble Court be pleased to restrain the respondent no.3 from taking any coercive measures including taking steps to seize the cargo; (e) That pending the hearing and final disposal of this petition, that this Hon'ble Court be pleased to restrain the respondent no.3 from taking any coercive measures and forcing the petitioner to pay customs duty on the cargo; (f) That pending the hearing and final disposal of this petition, this Hon'ble Court be pleased....
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....ng documents for the purposes of customs clearance of the contractual cargo. a) Bill of Lading b) Original Supplies Invoice Copy c) Weight and Quality Certificate at Load Port d) The Certificate of Origin. The seller will try to provide any other documents required by the buyer on a written/email request from the buyer. For any other document per the actual costs/charges shall be on the buyer's account. The additional documents shall not in any way form a precondition for payment. Clause-12 : General Conditions : a) Any amendments and supplements to the contract are valid only if they are agreed upon by the parties in writing and signed by authorized representative of both parties and delivered to the parties; b) The risk in the goods shall pass to the buyer upon the same having been cleared by customs. Buyer shall be responsible for covering insurance after De-bonding of the cargo or as soon as the cargo has been lifted on to the trucks for shifting to the refineries. c) It is understood that the transfer of ownership agreement is being executed solely for customs purposes. In the event of any conflic....
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....n view of the aforesaid, it is the case of the writ-applicant that in accordance with Clause 12(C) of the Bond to Bond contract, the title of the goods remains with the writ-applicant. The goods, as on date, are lying at Gandhidham and the same are in physical custody of the writ-applicant. 2.14 It appears that on 9th October 2018, the respondent no.5 addressed a representation to the Policy Relaxation Committee (operating under the respondent no.4), wherein the respondent no.5 made itself very clear that the contract stood frustrated as it failed to make payment towards the purchase consideration. It further appears that the request made by the respondent no.5 for extension of the time limit to comply with its obligations under the advance authorization in relation to the process for re-export of the cargo within a period of six months from the date of the ex-bond clearance also came to be rejected by the respondent no.4. 2.15 The writ-applicant, claiming the title and possession of the cargo, requested that it may be permitted to reprocess the cargo through an alternative entity holding the advance authorization and/or amending the bill of entry for re-export into the world....
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....he goods, the writ-applicant is entitled to seek re-export of the entire cargo subject to imposition of some charges towards the re-export. SUBMISSIONS ON BEHALF OF THE RESPONDENT NO.2: 7. Mr.Nikunt Raval, the learned standing counsel appearing for the Commissioner of Customs, Kandla, State of Gujarat, on the other hand, has vehemently opposed this writ-application. Mr.Raval would submit that the respondent no.5 obtained the advance license dated 24th May 2017 under the provisions of the Foreign Trade Policy as enacted under the Foreign Trade (Development and Regulation) Act, 1992, which permits importation of goods waiving the general preconditions of import on fulfillment of such conditions as are, inter alia, enumerated in the Notification No.41/2016. He would submit that the respondent no.5 imported a total of 7337 MTS of raw sugar based on an agreement entered into with the writ-applicant with an understanding that the raw sugar would be processed and further exported within a period of six months from the date of import as required under the advance license. The imports are the bills of entry indisputably filed in the name of the respondent no.5. The entire stock could ....
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....genuine hardships resulting in adverse impact on trade, as provided in para-2.58 of the Foreign Trade Policy 2015-20. 12. In such circumstances referred to above, Mr.Bhatt prays that there being no merit in the present writ-application, the same be rejected. ANALYSIS : 13. Having heard the learned counsel appearing for the parties and having gone through the materials on record, the only question that falls for our consideration is, whether the respondents are justified in demanding the customs duty on the goods in question for the purpose of re-export at the instance of the writ-applicant. 14. Before adverting to the rival submissions canvassed on either side, we must first look into few relevant provisions of the Customs Act, 1962. Section 2(4) defines "bill of entry" as under : "'bill of entry' means a bill of entry referred to in section 46;" Section 2(5) defines "bill of export" as under : "'bill of export' means a bill of export referred to in section 50;" Section 2(23) defines "import" as under : "'import', with its grammatical variations and cognate expressions, means bringing into India from a place outside India;" Section....
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....s made in this behalf: Provided further that the rules made in this behalf may provide for,- (i) the circumstances in which the buyer and the seller shall be deemed to be related; (ii) the manner of determination of value in respect of goods when there is no sale, or the buyer and the seller are related, or price is not the sole consideration for the sale or in any other case; (iii) the manner of acceptance or rejection of value declared by the importer or exporter, as the case may be, where the proper officer has reason to doubt the truth or accuracy of such value, and determination of value for the purposes of this section: Provided also that such price shall be calculated with reference to the rate of exchange as in force on the date on which a bill of entry is presented under section 46, or a shipping bill of export, as the case may be, is presented under section 50. (2) Notwithstanding anything contained in sub-section (i), if the Board is satisfied that it is necessary or expedient so to do, it may, by notification in the Official Gazette, fix tariff values for any class of imported goods or export goods, having r....
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....ion or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. (2) The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force,- (a) shall keep a record of such goods and send a copy thereof to the proper officer; (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer. [(3) Notwithstanding anything contained in any law for the time being in force, if any imported goods are pilfered after unloading thereof in a customs area while in the custody of a person referred to in subsection (1), that person shall be liable to pay duty on such goods at the rate prevailing on the date of delivery of an import manifest or, as the case may be, an import report to the proper officer under section 30 for the arrival of the conveyance in which the said goods were carried.]" 19. Section 46 is with respect to entry of goods on importation. Section 46 reads thus : "46. Entry of goods on importation.--(1) The....
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.... may be prescribed]. [(4A) The importer who presents a bill of entry shall ensure the following namely :- (a) the accuracy and completeness of the information given therein; (b) the authenticity and validity of any document supporting it; and (c) compliance with the restriction or prohibition, if any, relating to the goods under this Act or under any other law for the time being in force.] (5) If the proper officer is satisfied that the interests of revenue are not prejudicially affected and that there was no fraudulent intention, he may permit substitution of a bill of entry for home consumption for a bill of entry for warehousing or vice versa." 20. Section 47 is with respect to clearance of goods for home consumption. Section 47 reads thus : "47. Clearance of goods for home consumption.--[(1)] Where the proper officer is satisfied that any goods entered for home consumption are not prohibited goods and the importer has paid the import duty, if any, assessed thereon and any charges payable under this Act in respect of the same, the proper officer may make an order permitting clearance of the goods for home consumption. ....
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....nditions as may be prescribed, license a public warehouse wherein dutiable goods may be deposited." 23. Section 59 is with respect to warehousing bond. Section 59 reads thus : "59. Warehousing bond.--(1) The importer of any goods in respect of which a bill of entry for warehousing has been prescribed under section 46 and assessed to duty under section 17 or section 18 shall execute a bond in a sum equal to thrice the amount of the duty assessed on such goods, binding himself-- (a) to comply with all the provisions of this Act and the rules and regulations in respect of such goods; (b) to pay, on or before a date specified in the notice of demand, all duties and interest payable under subsection (2) of section 6; and (c) to pay all penalties and fines incurred for the contravention of the provisions of this Act or the rules or regulations, in respect of such goods. (2) For the purposes of sub-section (1), the Assistant Commissioner of Customs or Deputy Commissioner of Customs may permit an importer to execute a general bond in such amount as the Assistant Commissioner of Customs or Deputy Commissioner of Customs may approve in respect ....
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....fied in clause (c) of sub-section (1) remain in a warehouse beyond the period of ninety days from the date on which the proper officer has made an order under sub-section (1) of section 60, interest shall be payable at such rate as may be fixed by the Central Government under section 47, on the amount of duty payable at the time of clearance of the goods, for the period from the expiry of the said ninety days till the date of payment of duty on the warehoused goods: Provided that if the Board considers it necessary so to do, in the public interest, it may,-- (a) by order, and under the circumstances of an exceptional nature, to be specified in such order, waive the whole or part of any interest payable under this section in respect of any warehoused goods; (b) by notification in the Official Gazette, specify the class of goods in respect of which no interest shall be charged under this section. (c) by notification in the Official Gazette, specify the class of goods in respect of which the interest shall be chargeable from the date on which the proper officer has made an order under sub-section (1) of section 60." 25. In the last, we shall now ....
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....2016 dt. 24.03.2017) from the date of clearance of each import consignment by Customs Authority. 16. Authorisation holder willing to take the finished components imported and Advance Authorisation scheme, directly from the port to the site of the recipient of deemed export supply (Project Authority) shall follow the procedure laid down by DOR in this regard. For availing the facility, name of such components and the address of the site where the said components are to be supplied, should indicated in the Advance Authorisation issued by Regional Authority concerned. 17. No drawback shall be available for any duty paid material whether imported or indigenous unless such item(s) is/are endorsed on the authorisation by RA in terms of para 4.15 of the FTP 2015-20." 31. Thus, the emphasis laid on behalf of the respondents is on the fact that the advance authorization has been issued with pre-import conditions. The export obligation period was restricted to six months from the date of clearance of each consignment by the Customs authority. 32. The case put up by the respondents is that the export obligation within the period of six months as provided in the advance....
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....thorization holder, then the stance of the department that as the exemption from duty was granted at the time of the import of the goods subject to the conditions of the Customs Notification No.79/2017-Cus and the condition of fulfillment of export obligation within the period specified in the authorization not being complied with, the goods are liable to be confiscated under Section 111(o) of the Act, 1962, also appears to be well justified. 36. The fact that the exporter, i.e. the writ-applicant, has not been paid the price of the goods and that his goods are liable to be confiscated because of a lapse or any irregularity on the part of the respondent no.5, the same would have no impact on the legal position as regards the goods being liable to be confiscated under Section 111(o) of the Act, 1962. 37. With all that has been observed above, still the writapplicant being the unpaid owner and exporter of the goods can claim ownership of the goods and also reshipment. 38. In the case of Unisilk vs. Commissioner of Customs, reported in 2001 (134) ELT 40 (Guj), this Court had the occasion to consider a litigation wherein a company of Hong Kong exported raw silk to various coun....
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....ctly approached by the foreign supplier. The Court also discussed the relevant provisions of the prevalent Import Control Order, and observed as follows: "19. 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 effective implementation of the said order and the Import and Exports (Control) Act. The fiction however cannot be carried beyond that. It cannot be employed to attribute ownership of the imported goods to the importer even in a case where he abandons them, i.e. in a situation where he does not pay for and receive the documents of title. It may be that for such act of abandonment, action may be taken against him for suspension/cancellation of licence. May be, some other proceedings can also be taken against him. But certainly he cannot be treated as the owner of the goods even in suc....
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....e entitled to re-export or return of the goods. Section 68 of the Customs Act, 1962, requires the filing of a bill of entry (ex-bond bill of entry) for clearance of any warehoused goods for home consumption. We were given to understand that over a period of time the ex-bond bills of entry are being filed with the Commissionerates having jurisdiction over the warehouses and in large number of cases, manually. The filing of ex-bond bills of entry on ICES would provide the benefits of automation to the importers availing the warehousing facility and lend efficiency to the process of clearance of the warehoused goods. The importer or owner of the warehoused goods seeking to clear the goods for home consumption under Section 68 is expected to file the ex-bond bills of entry on ICES and the customs station of import would have to assess the bill of entry for clearance of the warehoused goods for home consumption. Upon the importer or owner producing the ex-bond bill of entry for home consumption, the bond officer shall - (i) verify the bill of entry particulars; and (ii) permit the removal of goods from the warehouse for home consumption in terms of regulation 8 of the Warehouse (Custody....
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...., Meenambakkam, Chennai, reported in (2012) 281 ELT 522, wherein the importer had refused to clear and take delivery of the goods, and as the cost of the goods had not been paid, the petitioner therein had requested the authorities to permit reexport/ reshipment of the goods. In such circumstances, a writ-application was filed before the Madras High Court under Article 226 of the Constitution of India. While disposing of the writ-application, the Court observed as under : "4. The learned counsel appearing on behalf of the petitioner had submitted that the petitioner continues to be the owner of the goods in question, when the importer or the consignee concerned abandons the goods imported on their behalf, as held by the Supreme Court, in Union of India Vs. Sampath Raj Dugar, reported in 1992(58) ELT 163 (SC). 5. It had also been stated that the seller of the goods is deemed to be an `unpaid seller', as per the terms of Section 45 of the Sale Goods Act, 1930, when the whole of the price had not been paid or tendered. Under Section 46 of the said Act it is stated that, notwithstanding the fact that the property in the goods may have passed to the buyer, the unpa....
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....he records available, it is clear that the petitioner has the right to request the respondents for the necessary permission, to re-ship or to re-export the goods in question. Further, as the third respondent does not have any serious objection for the re-export of the goods in question, the respondents are directed to permit the petitioner to re-export the goods in question, as prayed for by the petitioner, in the present writ petition. However, it is made clear that it is open to the authorities concerned, to pass an appropriate order, with the view to initiate the necessary action against the parties concerned, if it is deemed to be necessary, in respect of the alleged infringement of the relevant provisions of law, if any, as expeditiously as possible, as the petitioner, has been incurring heavy demurrage charges. Further, it is made clear that the respondents are directed to consider the request of the petitioner, for the re-shipment and re-export of the goods in question, in view of the above observations made by this Court, in this order, unless there are other legal impediments, for granting such permission, as prayed for by the petitioner. The writ petition is ordered accor....
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....nce it is cleared for home consumption, that goods get merged with the mass of the goods in the country. Re-export is permitted in a situation where the importer does not want to clear that the goods for home consumption for various reasons and when the goods are permitted to be re-exported, the question of clearance of the goods for home consumption on payment of duty does not arise. Therefore, we are of the considered opinion that duty can be demanded only when the goods are cleared for home consumption and not when they are permitted to be re-exported, on payment of fine and penalty. Before parting with this case, we would also like to observe that, if an importer were to pay duty also (in addition to fine and penalty), on the goods permitted to be re-exported, he need not undergo the various complex and time consuming formalities of re-export again and he is free to dispose of the goods in the domestic market itself, once duty and other charges have been paid on it. In view of what has been discussed above and in the facts and circumstances of the case, we allow re-export of the excess quantity of goods on payment of redemption fine of Rs. 1,00,000 (Rupees one lakh) and impose ....