TaxTMI 
TaxTMI 
2023 (12) TMI 1022
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....nces of the present case, this Hon'ble Court be pleased to issue a Writ of Certiorari or a writ in the nature of Certiorari or any other writ, order or direction under Article 226 of the Constitution of India, as this Hon'ble Court may deem fit, calling for the records of the case pertaining to the Petitioner case and after going into the legality and validity direct the Respondent No. 2 to issue appropriate order and/or direction and/or detention waiver certificate to the Respondent No. 3; (c) That, in the facts and circumstances of the present case, this Hon'ble Court be pleased to issue a Writ of Mandamus or a writ in the nature of Mandamus or any other writ, order or direction under Article 226 of the Constitution of India, as this Hon'ble Court may deem fit, calling for the records of the case pertaining to the Petitioner case and after going into the legality and validity direct the Respondent No. 2 to reimburse/refund the detention charges amounting to Rs. 46,96,695/- paid by the petitioner to Respondent No. 3 forthwith, along with interest thereon @ 18% p.a.; 3. Narrative of Events - (i) The petitioner is engaged in the business of importing agrochemica....
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....pplier. In support thereof, the petitioner enclosed comparative chart of suppliers costing chart with export incentives and local price from supplier without incentives. The petitioner further requested respondent No. 2 to clear the goods against PD bond provisionally to avoid extreme detention and demurrage, and considering the fact that the insecticide was required for production of pesticides for paddy season. (ix) The petitioner filed a revised Bill of Entry No. 2773198 dated 15th February 2021 for provisional release of the goods. (x) On 19th February 2021 (sic 19th February 2020), the Assistant Commissioner of Customs addressed a letter to the Joint Additional Commissioner of Customs, Nhava Sheva, giving no objection certificate for release of the goods on execution of a bond as per paragraph 2.1 of CBIC Circular No. 35/2017. The said letter records that the estimated differential duty of the seized goods is Rs. 3,59,789/-. The said letter also records that the petitioner requested for provisional release of these goods vide letter dated 5th February 2021. (xi) The petitioner has annexed to the petition various e-mail correspondence with respondent ....
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....through the reply affidavit dated 2nd October 2021 and it is his submission that as per Regulation 10(1)(l) of the Sea Cargo Manifest and Transhipment Regulations, 2018, the entries in the bill of entries are not found to be correct, and therefore, they are justified in imposing the detention charges and in not issuing the detention waiver certificate. Submissions of Respondent No. 3 8. The counsel for respondent No. 3 submitted that there is no privity of contract between the petitioner and respondent No. 3, therefore, no relief can be granted against respondent No. 3. Respondent No. 3 further stated that they were not responsible for detention and therefore, cannot be made to suffer for no fault on their part. The learned counsel further relied on Section 49 of the Customs Act and contended that the petitioner should have applied for de-stuffing of the goods in public warehouse to mitigate the loss. Respondent No. 3, therefore, submitted that no order be passed against them. Analysis and Conclusion 9. The only issue which falls for our consideration is whether in the facts of the present case, Respondent No. 2 was justified in not issuing detention waiver certificate ....
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.... where goods are detained in the ordinary course of appraisement such as for determination of the tariff classification of goods or their assessable value in terms of Section 14 of the Customs Act." 12. At the outset, we wish to state that we are not adjudicating any dispute between the petitioner and respondent No. 3 nor has the petitioner prayed for any relief against respondent No. 3 in the present petition. 13. The learned counsel for respondent Nos. 1 & 2 has relied upon Regulation 10(1)(l) of the Sea Cargo Manifest and Transhipment Regulations, 2018, to deny the issuance of detention waiver certificate. The said Regulation reads as under :- "Regulation 10. Responsibilities of the authorised carrier under these regulations - (1) An authorised carrier shall - (a) to (k) ...... (l) not demand any container detention charges for the containers laden with the goods detained by customs for purpose of verifying the entries made under Section 46 or Section 50 of the Act, if the entries are found to be correct." 14. The contention of respondent Nos. 1 & 2 is that on account of mis-declaration of value of goods, the entries found in the bill....
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.... certificate. 16. The petitioner vide letters dated 29th January 2021, 5th February 2021 and 8th July 2021 had repeatedly requested respondent No. 2 for issuing detention waiver certificate. However, respondent No. 2 for the reasons best known has not responded to these letters. Respondent No. 2 at the most in exercise of his public duty ought to have replied to these letters giving reason as to why the request made for waiver certificate could not be acceded to. The reason for the first time is appearing in the reply affidavit to the present petition. Such a course of action cannot be accepted moreso considering the norms of ease of doing business. 17. In connection with detention issues, it is important to note the Circular No.84 dated 25th July 1995 which reads thus : - "Circular No.84/95 dated 25/7/95 F.No. 450/61/93-Cus.. IV Government of India Ministry of Finance, Department of Revenue Central Board of Excise & Customs, New Delhi Subject: Customs detention of imported cargo at ports - Instruction regarding I am directed to say that the matter of long detention of cargo including containerised cargo at various ports by the Customs a....
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.... time are not resorted. A report of the review undertaken in the regard may be sent by 30.9.95 indicating only cases where such containers are required to be detained beyond 6 months with justification therefor. Sd/- (V.K. Singh) Senior Technical Officer 18. To the similar effect is Circular No.83 dated 5th November 1998 and paragraph 5 of the said Circular reads thus : - Circular No. 83/98-Customs dated 5/11/1998 "5. In case the goods are required to be detained for detailed examination, investigations, etc. the goods should be destuffed from the container and stored in any ware houses. The containers should be released so that the shipping agents can fulfil their commitment of re-exporting the container within six months of their import." 19. Instruction No. 20/2021 dated 10th September 2021 issued by the Central Board of Indirect Taxes and Customs also reiterates what is stated above. Relevant paragraph 2.2 of the said instruction reads as under :- Instruction No. 20/2021-Customs "2.2. Field formations follow the spirit of para 5 of Board Circular 83/98-Customs dated 5.11.1998 and para 3 of Board Circular No.84/95-Cus d....