Case Law Details
Hazel Mercantile Ltd Vs Chief Commissioner Of Customs (Gujarat High Court)
At this stage, Mr. Nankani made two fold fervent appeals. He made a request that the earlier bond, which was furnished by his client to the respondent No.1 should be returned as the writ applicant has now been asked to furnish a fresh bond. Let the first bond which was furnished by the writ applicant to the respondent No.1 be returned. The second request is that with passage of time, the goods must have suffered some wear and tear including evaporation being in a liquid form. He makes a request that the demurrage charges etc. may be waived.
In the above regard, we permit the writ applicant to make such request to the respondent No.1. The respondent No.1 shall consider the request having regard to the overall background (including delay) of the matter and take an appropriate decision in accordance with law expeditiously.
FULL TEXT OF THE JUDGMENT/ORDER OF GUJARAT HIGH COURT
1. By this writ application under Article 226 of the Constitution of India, the writ applicant has prayed for the following reliefs:
“a. Your Lordships may be pleased to issue Writ of Certiorari or Writ in the nature of certiorari quashing and setting aside the Letter dated 11.06.2021 (Annexure-V Colly), and Letter dated 03.06.2021 (Annexure-T) issued by the Respondent no.1 to the M/s Friends Salt Works and Allied Industries Kandla for holding of consignment of the said Cargo;
b. Your Lordships may be declared that the Re-Test Report vide C. No.27-Cus/C-8/2021-22 dated 06.2021 Conducted by the CRCL, New Delhi in respect of the subject goods stored in M/s Friends Salt Works and Allied Industries Kandla is illegal, null and void and void ab-initio in the interest of justice
c. Your Lordships may be declared that the Test report conducted by the CSIR-Indian Institute of Petroleum, Dehradun dated 15.04.2021 as a premier Laboratory and its report is binding upon the Respondents in the interest of justice;
d. Your Lordships may be pleased to direct the Respondents for the end re-test of the subject goods with at least 3 different laboratories as per the choice of the petitioner in the interest of principle of natural justice;
e. Your Lordships may be pleased to direct the Respondents their servants and agent to release the goods provisionally as per the Test Report analysed by the CSIR-Indian Institute of Petroleum, Dehra dun, Test Report analysed by the TUV India Pvt. Ltd. and Test Report Conducted by the CRCL, Kandla in respect of the subject goods stored in M/s. Friends Salt Works and Allied Industries Kandla on such terms and conditions that this Hon’ble Court deems proper;
f. During the pendency and final disposal of the present petition, Your Lordships may be pleased to stay the implementation of the Letter dated 11.06.2021 (Annexure-V-Colly) and Letter dated 03.06.2021 (Annexure-T) issued by the Respondent No.1 to the M/s. Friends Salt Works and Allied Industries Kandla for holding of consignment of the said Cargo in the interest of justice;
g. That the test report of the TUV India Private Limited and CSIR-Indian Institute of Petroleum, Dehradun in respect of the subject goods stored in M/s. Friends Salt Works and Allied Industries, Kandla should be declare as a valid test report on such terms and conditions that this Hon’ble Court deems proper;
h. That direction may be given to the Respondents to issue the Waiver certificate of the demurrage, detention and storage charges in rspect of the subject goods in the interest of justice;
i. Pending the hearing and final disposal of the Special Civil Application, the petitioner may be allowed to reexport the subject goods without any condition as this Court may deem fit and proper in the interest of principle of natural justice;
j. Pending the hearing and final disposal of the Special Civil Application, the petitioner may be permitted to clear the subject goods without any condition as this Court may deem fit and proper in the interest of principle of natural justice;
k. Pending the hearing and final disposal of this petition, the subject goods stored in M/s. Friends Salt Works and Allied Industries Kandla should be released on provisional basis as per Section 110(A) of the Customs Act, 1962 in the interest of principle of natural justice;
l. Your Lordships may be pleased to direct the Respondent No.1 to pay the demurrage, detention, storage charges in respect of the subject goods and further petitioner may be compensated for the amount of Rs.20,00,00,000/- for the illegality which is committed by the Respondents in the interest of justice;
m. To award exemplary costs to the petitioner to be paid by the Respondents.
n. Cost of this petition be provided to the Petitioner abovenamed.
o. Such other and further reliefs as the nature and the circumstances of the case may require.”
2. We need not delve much into the facts of this case as our order dated 10.02.2022 would make the picture clear.
3. We have heard Mr. Vikram Nankani, the learned senior counsel assisted by Mr. Gaurav Mehta and Mr. Nimesh Mehta, the learned counsel appearing for the writ applicant and Mr. Devang Vyas, the learned ASG assisted by Mr. Dhaval Vyas, the learned senior standing counsel appearing for the respondent No.2 –Directorate of Revenue Intelligence.
4. It appears from the materials on record that the writ applicant imported a consignment claiming that to be one of Naphtha. It is the case of the writ applicant that the port of loading was at Oman and the port of discharge was to be at any Indian port.
5. The consignment reached the port at Kandla. The DRI expressed some doubt as regards the declaration made by the writ applicant that the goods imported is Naphtha. The DRI did not permit the writ applicant to clear the goods. The DRI thought fit to draw the samples of the goods for the purpose of getting them tested at the Laboratory.
6. As on date, there are not less than five test reports on record. The first test report of the sample drawn by the DRI certified that the sample is not Naphtha, but something else. Later all the test reports have certified the samples to be Naphtha.
7. It is the case of the DRI that if the goods imported is not Naphtha then the same may be liable to be confiscated. It also appears from the materials on record that at one point of time the goods were cleared and ordered to be released by the respondent No.1 upon the writ applicant furnishing a bond of the amount equivalent to the value of the goods. The bond was also furnished, however, the DRI asked the Commissioner not to give effect to his order of release as the DRI wanted the samples to be further
8. The picture that emerges as on date is and more particularly, considering the test reports that prima facie, the goods is Naphtha. At this stage, the writ applicant is only concerned with getting his goods released. We are of the view that since there are test reports indicating the goods to be Naphtha, let the goods be released at the earliest on the condition that the writ applicant shall furnish a fresh bond of the amount equivalent to the value of the goods. The bond shall be furnished to the respondent No.1 and upon furnishing such bond, the respondent No.1 shall permit the writ applicant to take delivery of the goods.
9. We clarify that if the DRI has any further doubts in the matter, it is always open for the DRI to proceed further with its inquiry in accordance with law. For the present, we are only concerned with the goods. Let the goods be released upon the writ applicant furnishing a bond of the amount equivalent to the value of the goods at the earliest.
With the aforesaid, this writ application stands disposed of.
At this stage, Mr. Nankani made two fold fervent appeals. He made a request that the earlier bond, which was furnished by his client to the respondent No.1 should be returned as the writ applicant has now been asked to furnish a fresh bond. Let the first bond which was furnished by the writ applicant to the respondent No.1 be returned. The second request is that with passage of time, the goods must have suffered some wear and tear including evaporation being in a liquid form. He makes a request that the demurrage charges etc. may be waived.
In the above regard, we permit the writ applicant to make such request to the respondent No.1. The respondent No.1 shall consider the request having regard to the overall background (including delay) of the matter and take an appropriate decision in accordance with law expeditiously.
