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M/s. Shri Lakshmi Dhall Mill, Rep. by its Partner, S. Somasundaram v/s The Commissioner of Customs, Tuticorin & Another

    W.P.[MD]No. 6739 of 2019 & W.M.P.[MD]No. 5386 of 2019

    Decided On, 26 March 2019

    At, Before the Madurai Bench of Madras High Court

    By, THE HONOURABLE MR. JUSTICE ABDUL QUDDHOSE

    For the Petitioner: Mahaboob Athiff, Advocate. For the Respondents: R1 & R2, B. Vijay Karthikeyan, Standing Counsel.



Judgment Text


(Prayer: Petition filed under Article 226 of the Constitution of India praying to issue a Writ of Mandamus, directing the respondent to cause release of “Yellow Peas / Green Peas” imported by the petitioners under 2 bill of entries 1.2019529 Dated 11.02.2019/ 2.2019530 dated 11.02.2019/ covered under Sales Contract No.S19-17107 dated 01.10.2018 in terms of orders of the Hon'ble Court in W.P.[MD]No.21158 of 2018, W.M.P.No.18999 of 2018 and further direct the respondents to issue a “Detention Certificate” for waiver of Demurrage and container Detention Charges in terms of Regulation 6(1)(l) of Handling of Cargo in Customs Areas Regulations, 2009.)

1. The instant writ petition has been filed for a Mandamus, to direct the respondent to release the cargo of yellow peas and green peas imported by the petitioners under two bill of entries namely, 1) 2019529 dated 11.02.2019 and 2) 2019530 dated 11.02.2019, covered under Sales Contract No.S19-17107 dated 01.10.2018, in terms of orders of this Court in W.P.[MD]No.21158 of 2018, and further to direct the respondents to issue a detention certificate for waiver of demurrage and Container Detention Charges in terms of Regulation 6(1)(l) of Handling of Cargo in Customs Areas Regulations, 2009.

2. It is the case of the petitioner that they imported cargo of green peas under the sales Contract No.S19-17-17107 dated 01.10.2018 from Canada. It is the case of the petitioner that by notification dated 28.09.2018, the Director General of Foreign Trade, restricted import of green peas / yellow peas.

3. According to the petitioner, the cargo arrived at the port of Tuticorin on 12.02.2019 and the bills of lading are both dated 29.12.2018. According to the petitioner, the said notification dated 28.09.2018 issued by the Director General of Foreign Trade was challenged before the Principal Seat in W.P.No.21158 of 2018 and an interim stay of the notification was granted by this Court in W.M.P.No.18999 of 2018 and the stay still continues in favour of the petitioner. According to the petitioner, similarly placed importers had filed writ petitions before the Principal Seat seeking for delivery of the cargo of green peas / yellow peas subsequent to the notification. By final orders passed in a batch of writ petitions in W.P.No.4403 of 2019 etc., batch on 27.02.2019, this Court directed the respondents to release the cargo of yellow peas / green peas if the bills of lading are dated on or before 30.12.2018.

4. It is the case of the petitioner that the bills of lading under which the cargo has been imported by them are both dated 29.12.2018 and therefore, the final order dated 27.02.2019 passed by the principal seat of this Court in a batch of writ petitions is also applicable to them. Despite bill of entries filed by them, till date they are unable to obtain release of cargo. In such circumstances, the Writ Petition has been filed.

5. Heard Mr.M.Mahaboob Athiff, learned Counsel for the petitioner and Mr.B.Vijay Karthikeyan, learned Standing Counsel for the respondents.

6. Learned Counsel for the petitioner drew the attention of this Court to the bills of lading under which the cargo of green peas / yellow peas have been imported by the petitioner from Canada which are both dated 29.12.2018. He also drew the attention of this Court to the order of the learned Single Judge of this Court in a batch of Writ Petitions dated 27.02.2019 and in particular he referred to paragraphs 22, 23, 24 and 25 of the said order and submitted that in view of the stay of the notification, the same order is also applicable to the petitioner who has also imported green peas / yellow peas and the bills of lading are dated 29.12.2018 before the cut off date of 30.12.2018, fixed by this Court under order dated 27.12.2019 passed in a batch of writ petitions filed by similarly placed importers.

7. Per contra, learned Standing Counsel referred to a decision of the Bombay High Court reported in 2019 (365) E.L.T. 35 (Bom.) [Shah Nanji Nagsi Exports Pvt. Ltd. Vs. Union of India], wherein according to him, it has been held that only in cases where the contracts have been concluded prior to the notification dated 30.08.2018 of the DFT, the importers can seek for delivery of the cargo of green peas / yellow peas. According to him, he referred to paragraph No.11 and 12 of the said judgment and submitted that in the instant case, since the bills of lading are dated 29.12.2018, ie., after the notification date, the petitioner is not entitled for release of the cargo of green peas / yellow peas.

8. The learned Standing Counsel also referred to another decision of the Calcutta High Court, reported in 2019 (365) E.L.T. 273 (Cal.) in the case of Sanmarg Pct. Ltd., Vs. Union of India and submitted that the learned Single Judge of this Court while passing the order dated 27.02.2019, in a batch of writ petitions has referred to the aforesaid judgment but according to him, the said judgment deals with importing newsprints, whereas in the instant case, it is green peas / yellow peas and therefore, that judgment is not applicable to the facts of the instant case.

Discussion:

9. Admittedly, similarly placed importers of green peas / yellow peas have been able to obtain release of the cargo subsequent to the notification dated 28.09.2019 issued by the Director General of Foreign Trade, by virtue of the final order dated 26.02.2019 passed by the learned Single Judge of this Court in the principal seat in a batch of writ petitions namely W.P.No.4403 of 2019 etc., batch. The following directions were issued by the learned Single Judge by her order dated 27.02.2019 which reads as follows:

“a) The grant of stay of operation of the relevant notification and the pendency of the said stay as on the date of import is admitted. Thus, and in conclusion on the basis of the admitted position on facts as recorded by me in paragraph 15 of this order and bearing in mind the balance of convenience in the present case, the consignments in question are liable to be released, though conditionally.

b) The petitioners will remit the entire duty component of the consignments imported by them in cases were such duty is leviable as per paragraph 15(iii) above along with a bank guarantee for the 10% of the invoice value. In cases where the duty impact is neutral, the petitioners shall furnish a bank guarantee for the 10% of the invoice value. Upon satisfaction of the aforesaid conditions, the consignments shall be released forthwith.

c) The authorities are at liberty to initiate proceedings in respect of the transactions in question and if done, the petitioners shall appear, be heard and file their submissions pursuant to which orders shall be passed by the authorities in accordance with law.

d) The petitioners have also prayed for waiver of demurrage charges incurred in respect of the detained consignments. In the light of Rule 6(1) of the Handling of Cargo in Customs Areas Regulations, 2009, which provides that the Customs Cargo Provider shall not, subject to any other law for the time being in force, charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive Officer or examining officer, as the case may be, there shall be a waiver of demurrage charges.”

10. While passing the aforesaid directions under the order dated 27.02.2019, the learned Single Judge has taken note of the fact that the notification dated 28.09.2018 issued by the Director General of Foreign Trade was challenged before the Gujarat High 8 Court, Bombay High Court and Madhya Pradesh High Court and has also taken note of the fact that as against the upholding of the notification by the Gujarat High Court, an SLP was filed before the Hon'ble Supreme Court which was also dismissed on 28.01.2019 in SLP.No.1922 of 2019. Only after considering all those facts, the order dated 27.02.2019, came to be passed by the learned Single Judge of this Court.

11. On instructions, it is now submitted by the learned Standing Counsel that till date no appeal has been filed as against the order dated 27.02.2019 passed by the learned Single Judge of this Court in a batch of Writ Petitions. The submissions made by the learned Standing Counsel before this Court today, were also considered by the learned Single Judge, while passing the order dated 27.02.2019 in a batch of Writ Petitions. Only thereafter, the petitioner has fixed the cut-of date for the bill of lading for release of cargo of green peas / yellow peas as 30.12.2018.

12. Admittedly, in the instant case, the petitioner's bills of lading are dated 29.12.2018. There cannot be any discrimination between importers when it is an admitted fact that similarly placed importers have already been able to obtain release of the cargo by virtue of the aforesaid order dated 27.02.2019 passed by the learned Single Judge of this Court. This Court is also inclined to grant an order in favour of the petitioner.

13. Accordingly, the respondents are directed to release the cargo of yellow peas / green peas to the petitioner imported by the petitioners under 2 bill of entries 1)2019529 dated 11.02.2019/ 2)2019530 dated 11.02.2019, on condition that the petitioner complies with the following directions:

“i) The petitioner will remit the entire duty component of the consignments imported by them where such duty is leviable along with a bank guarantee for the 10% of the invoice value. In cases where the duty impact is neutral, the petitioner shall furnish a bank guarantee for the 10% of the i

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nvoice value. Upon satisfaction of the aforesaid conditions, the consignments shall be released forthwith. ii) The petitioner has also prayed for waiver of demurrage charges incurred in respect of the detained consignments. In the light of Rule 6(1) of the Handling of Cargo in Customs Areas Regulations, 2009, which provides that the Customs Cargo Provider shall not, subject to any other law for the time being in force, charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or Appraiser or Inspector of Customs or Preventive Officer or 10 examining officer, as the case may be, there shall be a waiver of demurrage charges.” 14. However, it is made clear that the directions issued by the learned Single Judge of this Court by order dated 27.02.2019 in paragraphs 22, 23, 24 & 25 shall also apply for the petitioner. 15. With the aforesaid directions, the Writ Petition is disposed of. However, there shall be no order as to costs. Consequently, the connected miscellaneous petition is closed.
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