TaxTMI 
TaxTMI 
2022 (6) TMI 787
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....e arises out of these writ petitions is one and the same, these writ petitions were heard together and are being disposed of by this common order. 2. The petitioner is a proprietary concern which has been given the import export license by the Office of the Additional Director General of Foreign Trade, Government of India, Ministry of Commerce and Industry. To conduct the local business, the petitioner was given GST Registration also under the GST Act. Since the petitioner entity deals with the food items, a license in terms of Food Safety and Standards Act, 2006 has also been issued by the appropriate Authority under the said Act. The petitioner entity has been conducting business with due diligence and in compliance with the statutory obligations cast on it. 3. The petitioner during his business had placed an order to import wet dates to the extent of 25585 Kgs to one M/s. Silver Town Food Stuff Trading LLC at Dubai, UAE and accordingly, those food stuff having been packed in 850 packages covered under invoice, dated 13.10.2021 were despatched under Bill of Lading, dated 26.10.2021. The invoice value of the goods was Rs.9,74,099.20/-. The petitioner self-assessed the duty a....
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....nfiscated, however, an option to redeem the goods on payment of redemption fine of Rs.2,50,000/- each under Section 125 of the Act was given to the petitioner. 12. Ultimately since the revised duty on the basis of the revaluation has been imposed which were paid by the petitioner including the redemption fine as well as the penalty under the provisions of the Customs Act, altogether a sum of Rs.65 lakhs paid by the petitioner on 27.12.2021 had been appropriated by the Customs. 13. In this regard, it is to be noted that, during the pendency of the investigation, which was carried out by the office of the third respondent, the petitioner has made an application to the office of the respondents for availing of storage facility in terms of Section 49 of the Act, which was also having been considered was granted by the Customs, by permission letter, dated 13.01.2022. 14. Since the investigation was undertaken at that time, the third respondent issued a detention certificate as per the provisions of Section 6(1)(l) of the Handling of Cargo in Customs Area Regulations, 2009 (in short "the 2009 Regulations") to the fourth respondent, advising them not to charge rent or demurrage /....
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.... the part of the fourth and fifth respondents is not only against the directive issued in this regard by separate communications or advice note issued by the customs authorities to both fourth and fifth respondents respectively in both the cases but also against the provisions of 2009 as well as 2018 Regulations referred to above. Therefore, the learned Senior counsel seeks indulgence of this Court to issue a suitable direction by way of mandamus as prayed for in both the cases, directing the respondents 4 and 5 respectively in both the cases to release the goods without seeking for any demurrage or detention charges as they claim now, he contended. 21. Per contra, Mr.P.R.Krishnaraj and Mr.K.Bijay Sundar, learned counsels appearing for the fourth respondents and Mr.T.V.Suresh Kumar, learned counsel appearing for the fifth respondent would contend that, though they have been given license under the said Regulations, namely 2009 Regulations and 2018 Regulations, there has been a private contract between the petitioner and these respondents in terms of the license issued in this regard to these respondents. If at all, the petitioner seeks for waiver of demurrage and detention charg....
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....aring for the respondents 4 and 5 would contend that, these writ petitions are liable to be dismissed for the relief sought for in each of these writ petitions. 26. On the part of the customs, Mr.T.Pramod Kumar Chopda, learned Senior standing counsel, on instructions would submit that, up to 13.01.2022 certainly the petitioner would be entitled to get the waiver of demurrage and detention charges from the fourth and fifth respondents respectively in both the cases, as that power has been exercised by the customs authorities invoking Section 49 of the Act. 27. Insofar as the period beyond 13.01.2022 is concerned, even in the permission letter itself, dated 13.01.2022, the customs authorities has indicated that for any further extension, the petitioner should make an application within 30 days period. 28. Therefore, the learned standing counsel appearing for the customs would contend that, no such application since has been filed by the petitioner, the customs authorities did not have any occasion to consider whether any such extension to be given till the confiscation order is passed in this regard, i.e., dated 11.02.2022. 29. Therefore the petitioner himself has not com....
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.... respectively in both the cases beyond 13.01.2022 and if so, whether such claim is justifiable within the meaning of the provisions of the Customs Act as well as the two Regulations, namely 2009 Regulations and 2018 Regulations? 36. In order to delve into that issue, to get an answer, this Court feel that, the relevant provision of the Act as well as the two Regulations can be first looked into. 37. Section 49 of the Act reads thus : "49. Storage of imported goods in warehouse pending clearance or removal.-Where,-- (a) in the case of any imported goods, whether dutiable or not, entered for home consumption, the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied on the application of the importer that the goods cannot be cleared within a reasonable time; (b) in the case of any imported dutiable goods, entered for warehousing, the Assistant Commissioner of Customs or Deputy Commissioner of Customs is satisfied on the application of the importer that the goods cannot be removed for deposit in a warehouse within a reasonable time, the goods may pending clearance or removal, as the case may be, be permitted to be stored in a public w....
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.... 42. In 2009 Regulations, the relevant provision is Regulation 6(1)(l), which reads thus : "(l) subject to any other law for the time being in force, shall not charge any rent or demurrage on the goods seized or detained or confiscated by the proper officer." 43. Under Regulation 6(1)(l), the Customs Cargo service provider like the private respondents shall not charge any rent or demurrage on the goods seized or detained or confiscated by the proper officer. 44. Here in the case in hand, since the goods were seized and detained and if the same is put in warehouse like the warehouse of the respondents herein, they cannot charge any rent or demurrage on the goods seized. 45. Only under these provision, the Customs authorities on the very same date, i.e., on 13.01.2022, has also issued an advice letter to the fourth respondent, which reads thus : "The consignment covered under above said Bill of Entry filed by M/s. GK International (AFZPY2611P) was taken up for investigation by SIIB vide detention order, dated 08.11.2021 in F.No.S.Misc.343/2021-SIIB and permission to avail storage facility of goods under Section 49 of the Customs Act, 1962 was given on 13.....
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....of Section 49 of the Customs Act, 1962. 3. In view of the above, the detention charges for the container No. GRMU5200925 from 08.11.2021 to 13.01.2021 shall be waived off in terms of Regulation 10(l) of the Sea Cargo Manifest and Transhipment Regulations, 2018 as amended." 50. After these communications, permission letters, advice notes were issued on 13.01.2022, 17.01.2022, it is the case of the petitioner that, they approached both the fourth and fifth respondents respectively in both the cases to release the goods and the goods were not released for transfer into further warehouse or in the custody of the customs or the petitioner as these respondents, according to the petitioner had demanded the rent / demurrage or detention charges for the period from 08.11.2021 itself. 51. However, the definite case of the respondents 4 and 5 in both the cases as projected by them by way of counter affidavit as well as the arguments advanced by the learned respective counsel appearing for them was that, no doubt from 08.11.2021 to 13.01.2022, there was an advice by the authorities, i.e., from Customs for waiver of rent / demurrage / detention charges, however beyond 13.01.2022 ....
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....ission letter and advice note, dated 13.01.2022. 57. Here in the case in hand, since confiscation and redemption was possible only after 11.02.2022 Order-in-Original order, thereafter if at all the petitioner wanted to take the goods, whether beyond 13.01.2022 till the petitioner approaches the fourth and fifth respondents, whether that kind of demurrages can also be waived is the question. 58. In this regard, it is to be noted that, since the maximum period of demurrage and detention charges waivers could be possible for 60 days, beyond which, there is no scope for such demurrage and detention charges waiver in view of proviso to Regulations 10(l) of 2018 Regulations, since the said two months period had already been given from 18.11.2021 to 13.01.2022, in my considered view beyond 13.01.2022, the petitioner cannot seek for any such waiver for detention and demurrage charges. 59. Moreover in the permission letter, dated 13.01.2022, the customs authorities had made it clear that, for further extension of the waiver, the importer may make request with the Commissioner of Customs before the expiry of 30 days. 60. If that being so, from the point of view of the customs, be....