Delhi High Court – Orders
M/S. Golden Tobie Ltd vs Principal Commissioner Of Customs & Ors on 27 January, 2025
Author: Prathiba M. Singh
Bench: Prathiba M. Singh, Dharmesh Sharma
$~31
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 10955/2023 & CM APPL. 46959/2023
M/S. GOLDEN TOBIE LTD. .....Petitioner
Through: Mr. Abdullah Tanveer & Mr. Dhruv
Gupta, Advs. (M: 9897000770)
versus
PRINCIPAL COMMISSIONER OF
CUSTOMS & ORS. .....Respondent
Through: Mr. Aditya Singla, SSC, CBIC with
Mr. Ritwik Saha, Adv for R-2
(M:9958846148)
Mr. Sarul Jain, Adv for R-3.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE DHARMESH SHARMA
ORDER
% 27.01.2025
1. This hearing has been done through hybrid mode.
2. The present petition has been filed under Article 226 of the Constitution
of India seeking, inter alia, issuance of a writ of mandamus directing release
of the imported goods seized by the Principal Commissioner of Customs, Air
Cargo Complex (Import), New Delhi without payment of demurrage charges
in terms of Regulation 6(1)(L) of the Handling of Cargo in Customs Areas
Regulations, 2009.
3. The Petitioner had imported ‘Mono Acetate Rods’ (hereinafter “the
imported goods”) under Bill of Entry No. 6015260 dated 27th October, 2021.
The Petitioner vide letter dated 7th November, 2021, had informed the Deputy
Commissioner of Customs, New Delhi, that it has applied for import license,
however, the same would take some time. In the meantime, it was requested
by the Petitioner that the Department may avail the facilities of warehouse for
W.P.(C) 10955/2023 Page 1 of 7
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storing the imported goods in terms of Section 49 of the Customs Act, 1962
(hereinafter “the Act”). The imported goods were seized by the Principal
Commissioner of Customs, Air Cargo Complex (Import), New Delhi vide
seizure memo dated 22nd November, 2021.
4. No show cause notice was issued for a period of one year from the date
of seizure of the imported goods. Despite the lapse of the period specified
under Section 110(2) of the Act, the imported goods were not released by the
Department. Aggrieved by the same, the Petitioner filed W.P.(C) 8764/2022
for release of the imported goods. In the said writ petition, vide order dated
31st January, 2023, the Respondents were directed to forthwith release the
goods unconditionally to the Petitioners. The said order reads as under:
“1. The petitioner has filed the present petition,
inter alia, impugning a seizure memo dated 22.11.2021,
whereby goods (mono acetate rods) imported under the
Bill of Entry No.6015260 dated 27.10.2021 were seized.
2. The petitioner also prays that the respondents be
directed to unconditionally release the goods imported
under the said Bill of Entry dated 27.10.2021.
3. Admittedly, the show cause notice was not issued
within a period of six months from the date of the
seizure. However, this Court is informed that an
extension was granted by the concerned officer in terms
of proviso to Sub-section (2) of Section 110 of the
Customs Act, 1962. Undisputedly, the extended period
has also expired as more than one year has expired
since the seizure of the said goods.
4. In view of the above, in terms of Section 110(2) of the
Customs Act, 1962 the respondents are directed to
forthwith release the said goods unconditionally to the
petitioner.
W.P.(C) 10955/2023 Page 2 of 7
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5. Since it is not disputed that the show cause notice has
not been issued, this Court is refraining from examining
the other issues raised in the present petition.
6. It is clarified that the present order would not
preclude the respondents from initiating such
proceedings as may be otherwise permissible in law.
7. In view of the aforesaid, the present petition is
disposed of. All rights and contentions of the parties are
reserved.”
5. It is clear from the above, that the letter dated 7th November, 2021, sent
by the Petitioner has not been discussed in the said order dated 31st January,
2023 directing unconditional release of the imported goods. Further, it is
noted that in the writ petition filed earlier, the Petitioner had not sought release
of the imported goods without demurrage charges.
6. The grievance of the Petitioner is that despite repeated communications
to the Department including on 06th February, 2023, 28th March, 2023 and
24th April, 2023 the imported goods were not released. On 24th April, 2023,
a communication was received from the Department that the imported goods
can be released subject to the procedure laid down in law. In response to the
same, the Petitioner then realised that the demurrage charges of the
Respondent No. 3 – CELEBI Delhi Cargo Terminal Management India Pvt.
Ltd. (hereinafter “CELEBI”) was to the tune of Rs. 65 lakhs. Hence, the
Petitioner has preferred the present petition. The reliefs prayed in this petition
are as under:
“i. Issue a writ of Mandamus or other appropriate
writ seeking issuance of Detention Certificate from
Respondent No. 2 with a direction to release Goods
W.P.(C) 10955/2023 Page 3 of 7
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without any Demurrage Charges in view Regulation
6(1) (l) of Handling of Cargo in Customs Areas
Regulations, 2009 ; or
ii. Direct Respondent No. 2 to pay applicable
Demurrage Charges for illegal detention and willful
omission to place the Goods in a warehouse despite an
application / request dated 07.11.2021 being moved by
the Petitioner under Section 49 of the Act;
iii.Direct the Respondents to take all necessary steps in
order to ensure the forthwith and unconditional release
the Goods imported under the cover of bill of entry
No.6015260 dated 27.10.2021.
iv. Pass such other order or further orders as this
Hon’ble Court may deem fit and proper in the facts and
circumstances of the present case.”
7. Ld. Counsel for the Petitioner submits that despite the communication
dated 07th November, 2021, the Department did not transfer the goods to the
warehouse and therefore, the Petitioner is not liable to pay the demurrage
charges owed to CELEBI.
8. It is noted that on 04th September, 2023, when the matter was
considered, this Court had given liberty to the Petitioner to file an application
under Section 49 of the Act with the Department for movement of the
imported goods to the warehouse. Ld. Counsel for the Petitioner submits on a
specific query from the Court that no application has been filed under Section
49 of the Act pursuant to the liberty granted vide order dated 04th September,
2023. It is his submission that the unconditional release having been directed
by this court vide order dated 31st January, 2023 in W.P.(C) 8764/2022,
demurrage charges could not have been charged by the Department. However,
W.P.(C) 10955/2023 Page 4 of 7
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there is no explanation given insofar as the liberty given on 04th September,
2023 is concerned, as to why the appropriate application was not moved under
Section 49 of the Act.
9. The stand of the Customs Department is that the imported goods being
prohibited goods could not have been shifted to the warehouse. Be that as it
may, Mr. Singla, ld. Counsel submits that the Petitioner has not approached
under Section 49 of the Act despite the liberty being granted by this Court.
10. The stand of CELEBI is that if the demurrage charges are not paid,
CELEBI shall be free to proceed in accordance with law for recovery of
demurrage charges incurred for storage of the imported goods.
11. The overall conspectus of the facts would show that the Petitioner
appears to have merely addressed the communication dated 07th November,
2021 for transfer of the imported goods to the warehouse. However, there is
no explanation as to what steps were taken in the terms of the said
communication or if any follow up was initiated by the Petitioner. Moreover,
after the liberty to file an application under Section 49 of the Act was granted
vide order dated 04th September, 2023 clearly, the Petitioner has not taken any
further steps.
12. The Order-in-Original dated 07th June, 2024 has also now been placed
on record. According to the Petitioner, no show cause notice was ever
received by the Petitioner and the said Order-in-Original has been passed ex
parte.
13. Mr. Singla, ld. Counsel submits that despite repeated personal hearing
opportunities which were given to the Petitioner, apart from pressing the
present writ petition, the Petitioner has not availed of the personal hearing
opportunities. Accordingly, the concerned adjudicating authority has directed
W.P.(C) 10955/2023 Page 5 of 7
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absolute confiscation of the imported goods and penalty has also been
imposed.
14. Ld. Counsel for the Petitioner has relied upon the decision in Union of
India v. Sanjeev Woollen Mills, (1998) 9 SCC 647, as also in Shipping
Corpn. of India Ltd. v. C.L. Jain Woollen Mills, (2001) 5 SCC 345. In both
these judgements, it can be noticed that they were passed in the unique facts
of those cases and also because of the facts that amounted to special
circumstances. No special circumstances or peculiar facts are present in this
case.
15. In the present case, initially the Petitioner itself did not follow up with
the customs for moving of the imported goods to the warehouse in terms of
his own communication dated 07th November, 2021. Thereafter, even when
liberty was granted by this Court on 04th September, 2023, the Petitioner has
chosen not to avail of the same. In fact, an application was also moved by
CELEBI – Respondent No.3 for securing the payment of the demurrage
charges despite this no step was taken. In addition, the Petitioner has also not
participated in the proceedings qua the show cause notice itself. Obviously,
when the order dated 31st January, 2023 was passed, the Petitioner would be
aware that a show cause notice is likely to be issued by the Department which
was in fact issued on 30th January, 2023, though it is recorded to the contrary
in the said order possibly due to lack of instructions.
16. Under these circumstances, this Court is of the opinion that the
Petitioner is not entitled to the reliefs as sought under Article 226 of the
Constitution of India.
17. The Petitioner is, however, free to approach the Department as also the
Respondent No. 3 for release of the imported goods in accordance with law.
W.P.(C) 10955/2023 Page 6 of 7
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18. The petition is disposed of in above terms. Pending applications, if any,
are also disposed of.
PRATHIBA M. SINGH, J
DHARMESH SHARMA, J
JANUARY 27, 2025/gs/ms
W.P.(C) 10955/2023 Page 7 of 7
This is a digitally signed order.
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The Order is downloaded from the DHC Server on 30/01/2025 at 21:52:46