W.P.(C)/4207/2014 of HYUNDAI MERCHANT MARINE INDIA PVT LTD. Vs UNION OF INDIA & ORS.

Signature Not Verified

22 WITH + W.P.(C) 648/2016 TRANS ASIAN SHIPPING SERVICES (P) LIMITED .....Petitioner Through: Mr. Biju Joseph, Mr. Hardik Vashisht, Ms. Ashly Prakash, Mr. Taranjeet Phul, Advs versus THE DEPUTY COMMISSIONER OF CUSTOMS AND ANR .....Respondent Through: Ms. Anushree Narain, Sr. Standing Counsel with Mr. Ankit Kumar, Adv for Customs (M:[REDACTED]) Mr. Rishi K. Awasthi, Mr. Piyush Vatsa, Mr. Avinash Ankit, Mr. Rahul Kumar Gupta, Advs for R-2/CONCOR 23 WITH + W.P.(C) 677/2016TRANS ASIAN SHIPPING SERVICES (P) LIMITED

.....Petitioner Through: Mr. Biju Joseph, Mr. Hardik Vashisht, Ms. Ashly Prakash, Mr. Taranjeet Phul, Advs versus

THE ADDITIONAL COMMISSIONER OF CUSTOMS AND ORS.

.....Respondents Through: Ms. Anushree Narain, Sr. Standing Counsel with Mr. Ankit Kumar, Adv for Customs (M:[REDACTED]) Mr. Rishi K. Awasthi, Mr. Piyush Vatsa, Mr. Avinash Ankit, Mr. Rahul Kumar Gupta, Advs for R-2/CONCOR Mr. Satish Aggarwala, Sr. Standing

.....Petitioner

Through: Mr. Premtosh K. Mishra, CGSC with Mr. Manish Vashist & Ms. Sanya Kalsi, Advs for R-1/UOI versus

UNION OF INDIA & ORS. .....Respondents

Through: Ms. Anushree Narain, Sr. Standing Counsel with Mr. Ankit Kumar, Adv for Customs (M:[REDACTED]) Mr. Rishi K. Awasthi, Mr. Piyush Vatsa, Mr. Avinash Ankit, Mr. Rahul Kumar Gupta, Advs for R-2/CONCOR Counsel with Mr. Ankit Kumar, Adv for Customs (M:[REDACTED]) Mr. Rishi K. Awasthi, Mr. Piyush Vatsa, Mr. Avinash Ankit, Mr. Rahul Kumar Gupta, Advs for R-2/CONCOR

28 WITH + W.P.(C) 13099/2018 & CM APPL. 50863/2018

HYUNDAI MERCHANT MARINE INDIA PVT LTD

.....Petitioner

Through: Appearance not given. versus

UNION OF INDIA & ORS

.....Respondents

Through: Ms. Anushree Narain, Sr. Standing Counsel with Mr. Ankit Kumar, Adv for Customs (M:[REDACTED]) Counsel with Mr. Ankit Kumar, Adv for Customs (M:[REDACTED])

Mr. Rishi K. Awasthi, Mr. Piyush Vatsa, Mr. Avinash Ankit, Mr. Rahul Kumar Gupta, Advs for R-Vatsa, Mr. Avinash Ankit, Mr. Rahul Kumar Gupta, Advs for R-

2/CONCOR Mr. Satish Aggarwala, Sr. Standing Counsel for DRI

29 AND + W.P.(C) 9989/2019M/S HAPAG LIYOD INDIA PVT. LTD. THROUGH ITS AR RINKU VATS. .....Petitioner

Through:

versus

UNION OF INDIA AND ORS.

.....Respondents Through: Ms. Anushree Narain, Sr. Standing Counsel with Mr. Ankit Kumar, Adv for Customs (M:[REDACTED]) Mr. Rishi K. Awasthi, Mr. Piyush Vatsa, Mr. Avinash Ankit, Mr. Rahul Kumar Gupta, Advs for R-2/CONCOR

CORAM:JUSTICE PRATHIBA M. SINGHJUSTICE AMIT SHARMA

Prathiba M. Singh, J. (Oral)

1. This hearing has been done through hybrid mode.

2. The present petition has been filed on behalf of the Petitioner under Article 226 of the Constitution of India seeking issuance of writ in the nature of mandamus directing the Respondents to release various containers (hereinafter “subject containers”) containing imported consignments that have not been released to the respective Petitioners for various reasons.

3. It is the case of the Petitioners that the subject containers have been held up by the Respondents being the Customs Department as also the Container Corporation of India Limited (hereinafter “CONCOR”). It is stated that present petitions have been filed and are pending since 2014 and despite various representations made by the Petitioners in their respective matters, the Customs Department has till date not released the subject containers. Hence, the Petitioners have preferred the present petitions.

4. These petitions raise several issues, inter alia, as to the clearance of subject containers and the manner and mode in which the goods contained therein are to be disposed of. Another issue raised in the present petition is

whether any handling charges are to be paid to CONCOR or not for clearing the subject containers. 5. From time to time, several orders have been passed by this Court. On 7[th] September, 2015, the Court was informed that in W.P.(C) 945/2014out of 39 subject containers, 14 containers have been released to the Petitioner. The Court was further informed that the remaining subject containers are in the custody of CONCOR and since the concerned importer has neither taken the consignment nor paid the duty/charges applicable on the import of the same, the said containers cannot be released without auctioning the consignments therein, as per law. The relevant portion of the order dated 7[th] September, 2015, is extracted hereunder:

“2. The counsel for the respondent No. 1 UOI states that of the 39 containers, subject matter of this petition, 14 have been released and the balance containers are in the custody of respondents No.2&3 CCIL.

3. The counsel for the respondents No.2&3 CCIL states that the importer has not got the goods contained in the containers released and not paid the duty and other charges and steps have to be taken for the auction of the goods, after obtaining 'No Objection Certificate' (NOC) from the Custom Authority and the containers cannot be released before that.states that the importer has not got the goods contained in the containers released and not paid the duty and other charges and steps have to be taken for the auction of the goods, after obtaining 'No Objection Certificate' (NOC) from the Custom Authority and the containers cannot be released before that.

4. The right of the respondents No.2&3 CCIL to so detain the containers has been enquired into. detain the containers has been enquired into.

5. Though the counsel for the respondents No.2&3 CCIL states that there are rules in this regard but has not filed affidavit, insptie of being served on 22[nd] July & 31[st] July, 2015.

6.The respondents No.2&3 CCIL ought to have shown some expediency in the matter. This petition itself has been pending in this Court for more than one and half years. It prima facie appears that the containers cannot be so withheld indefinitely, while the respondents No.2&3 CCIL and the Custom Authorities go about their task.”

6. On 27[th] February, 2018, the ld. Single Judge of this Court, while considering the present batch of petitions directed the Customs Authorities to file comprehensive report detailing specifications qua each Petitioner and the time frame within which the respective containers would be de-stuffed and released to the concerned Petitioner. The relevant portion of the Order dated 27[th] February, 2018 reads as under:

“2. Under the provisions of Section 48 read with Section 150 of the Customs Act, the Customs Authority, I am told, is entitled to issue No Objection Certificate (NOC) to the Container Corporation of India to enable them to de-stuff the container and sell the items contained therein.

3. I am further informed that in certain cases, materials contained in the container are hazardous and therefore, requisite safety measures will have to be taken.

4. Importers have clearly abandoned the goods stored in containers. Resultantly, petitioners/ transporters are suffering, for no fault of theirs being unable to use the containers for business purposes over long periods of time.

5. Given these circumstances, in my view,the problem at hand has to be sorted out by the Customs Authority by interfacing with Container Corporation of India. The Customs Authority will have to find requisite means to

de-stuff the containers so that the petitioners'containers are released to them. I am told that in some cases, containers are lying in the designated premises since 1996. This is an alarming situation, insofar as those containers are concerned, which have hazardous items stored in them.

6. The Customs Authorities are, thus, directed to file comprehensive report with this court which will detail out specifications vis-a-vis each petitioner and also the -time frame within which they would destuff the container(s) and release the same to the concerned petitioners.

7. For this purpose, Commissioner of Customs will convene meeting with the Chief General Manager and the Executive Director.

7.1 Needful will be done within the next two weeks.

8. Renotify the matter on 11.5.2018.

9. These directions will apply mutatis mutandis to the Central Warehousing Corporation (CWC) as well.

10. It is made clear that in cases where "clear" NOC -has already been issued, those containers would be destuffed immediately and the container will be released to the concerned party within four weeks from today.”

7. Thereafter, on 30[th] January, 2019, the ld. Single Judge had passed several directions to the Customs Authorities as also CONCOR in respect of de-stuffing of the subject containers. The directions of the ld. Single Judge in order dated 30[th] January, 2019, are extracted hereunder:

“4. In this regard, it is directed that in all cases where goods have been detained by the Custom Authorities or

any of its agencies, the concerned Custom Authorities shall take necessary steps for removing the goods from the containers and warehousing them either on their own or by issuing NOC to the CONCOR for auctioning of the said goods. In cases where goods have been detained on account of the involvement of other agencies such as police authorities or on account of investigation by officers of the Directorate of Revenue Intelligence, the concerned Custom Authorities shall give due notice to those said authorities. They shall be entitled to take such measures instead of the said goods within period of three months failing which, on the strength of this order, CONCOR shall take necessary steps for removal of the goods from the said container and to warehouse them separately.

5. It is clarified that CONCOR is not precluded to recover the costs of warehousing if otherwise entitled, in accordance with law. It is clarified that this Court has not entered into such controversy whether cost can be recovered from the shipping lines. The said question is open and the CONCOR is entitled to take such steps in accordance with law. However, containers cannot be withheld and are required be released.

6. In those cases where NOC have been granted by the Customs Authorities, CONCOR shall do the needful for releasing of the containers within period of three months from today.”

8. Further, on 01[st] August, 2019, the Court had passed further directions specific to the lead petition being W.P. (C) 945/2014and the same are extracted here:

“2. The present petition relates to 39 containers, which are stated to be in the possession of the Container Corporation of India Limited (CONCOR). It is stated

that sixteen, containers had already been handed over to the petitioner; seven containers did not arrive at ICD Tughlakabad; two containers had initially arrived at ICD Tughlakabad but were later on forwarded to Mumbai; and the balance are pending clearance.

3. The learned counsel appearing for CONCOR seeks time to take instructions with regard to seven containers. Insofar as the remaining fourteen containers are concerned, the learned counsel appearing for Customs/DRI states that CONCOR has not provided details with regard to these containers. In the circumstances, CONCOR is directed to provide complete details of the containers to Customs and DRI, within period of one week from today, and DRI/Customs shall examine the same and issue No Objection Certificate (NOC) within period of four weeks, thereafter. In the event the goods are required to be retained for investigation or other purposes, DRI shall take steps to remove the same and make arrangements to store the same within period of four weeks, thereafter. In the event NOC is granted, CONCOR shall auction and/or destroy the goods as the case may be within period of 90 days thereafter and, ensure that those containers are released to the shipping lines immediately, thereafter.

4. List for compliance of 03.12.2019.”

9. In compliance of the orders passed by the Court in these batch matters, the Customs Department has filed several status reports from time to time. 10. On 2[nd] December, 2024, the ld. Single Judge has recorded the submissions of the ld. Counsel for the parties that respective orders under Sections 48, 49 and 150 of the Customs Act have been passed and that the petitions under the Customs Act, 1962, are required to be listed before the

Division Bench. Accordingly, the present petition was transferred and listed before this Bench.

11. On the last date of hearing i.e., 10th December, 2024, after having observed that the present batch petitions have been pending for more than decade only on such small issue in respect of release of containers, comprehensive status report was called for from Customs Department as also CONCOR. The relevant portion of the Order dated 10[th] December, 2024 is extracted hereunder:

“10. It is seen in these matters that there are large number of containers which have not been released for approximately more than decade. It appears that the Customs Department and Container Corporation of India Ltd. (hereinafter ‘CONCOR’) are at odds with each other. The Customs Department submits that the containers were detained for so long due to investigations by various authorities and that currently substantial number of containers have been released. The petitioners disagree with this fact. However, CONCOR’s stand is that the containers have not been released yet because the Petitioners have not paid the Terminal Service Charges (hereinafter ‘TSC’) levied on them.

11. Be that as it may, this Court is of the opinion that these containers cannot be kept for so long without being released. The entire purpose is being defeated by the callous manner in which both the Departments have dealt with the containers.

12. Let comprehensive report be placed on record in the main matter being W.P.(C) 945/2014 giving the details of all the containers in each of the writ petitions and their current status and if no report has been filed

by the next date of hearing, all the containers shall be liable to be released by this Court.

13. All Counsels shall appear physically in these matters.

14. If the proper instructions are not obtained and report is not filed by the next date, the concerned Commissioner of Customs Department shall remain present in Court.”

12. Today, status report has been filed by the Customs Department which includes the updated status report qua the subject containers which are pending for either destuffing, auction or investigation. As per the said report, as on date total of 170 out of 658 containers in respect of the Petitioners, have still not been released to the Petitioners for various reasons. The relevant portion of the said updated status report is extracted hereunder:

WPC No. 648/2016-TRANS ASIAN SHIPPPING SERVICES PVT. LTD. VS.UOI & ORS

All the 4 containers have already been transferred to CONCOR under Section 48 of the Customs Act, 1962 for disposal of goods.

13. Further, in addition to the above, it is submitted by the ld. Counsel for the Customs Department that for 20 subject containers action for disposal of goods is being initiated by the Customs Department itself. For ease of reference, the details of the said containers are as under:

WPC No. 9989/2019-HAPAG LLOYD VS UOI & ORS.

14. Let the de-stuffing of the above said containers listed in paragraph 13 be effected by the Customs Department within period of thirty days from the date of this order and the containers be released to the respective Petitioners.

15. Insofar as the remaining containers which have been transferred to CONCOR under Section 48 of the Customs Act for disposal of goods are concerned, CONCOR is free to auction/dispose of the goods in accordance with law and release the containers within the next 90 days.

16. The ld. Counsel for CONCOR submits that wherever goods have been destroyed, the destruction cost is to be paid by the Petitioners. Ordered accordingly. No other charges would be payable to CONCOR.

17. The ld. Counsels have also submitted that out of the 170 remaining containers, in respect of 20 containers there is either pending Police/Court case or some other investigation by the agencies such as CBI is ongoing.

The ld. Counsels have also submitted that out of the 170 remaining

18. In respect of the said 20 containers, let the containers be de-stuffed and be released to the respective shipping lines within period of three months in the presence of the concerned investigation agency’s officials.

19. The present order is being passed in the unique facts and circumstances of the present cases which have been pending for several years. The legal issues raised are left open.

20. The appearance of Ms. Anju Gupta and Mr. Roshan Lal Gupta, ld. Counsels for Respondent No.1 in W.P.(C) 2580/2018 may be reflected in order dated 10[th] December, 2024.

21. The present petitions are disposed of in above terms. Pending applications, if any, are also disposed of.

PRATHIBA M. SINGH JUDGE

DECEMBER 23, 2024/gs/Rahul/ms

AMIT SHARMA JUDGE