Full Text
HIGH COURT OF DELHI
Date of Decision: 23rd December, 2024
MAERSK LINE INDIA PRIVATE LIMITED .....Petitioner
Through: Mr. Aditya Rathee, Adv (M:9711872737)
Through: Ms. Anushree Narain, Sr. Standing Counsel
Mr. Rishi K. Awasthi, Mr. Piyush Vatsa, Mr. Avinash Ankit, Mr. Rahul Kumar Gupta, Advs for R-
2/CONCOR Mr. Satish Aggarwala, Sr. Standing Counsel for DRI
Mr. Amit Tiwari CGSC
ALBATROSS SHIPPING LIMITED .....Petitioner
Through: Mr. Biju Joseph, Mr. Hardik Vashisht, Ms. Ashly Prakash, Mr. Taranjeet Phul, Advs
2/CONCOR 14:18
JUDGMENT
22 WITH + W.P.(C) 648/2016 TRANS ASIAN SHIPPING SERVICES (P) LIMITED.....Petitioner versus THE DEPUTY COMMISSIONER OF CUSTOMS AND ANR.....Respondent 2/CONCOR 23 WITH + W.P.(C) 677/2016 TRANS ASIAN SHIPPING SERVICES (P) LIMITED versus THE ADDITIONAL COMMISSIONER OF CUSTOMS AND ORS......Respondents 2/CONCOR 14:18 Counsel for DRI. 24 WITH + W.P.(C) 2580/2018, CM APPL. 10590/2018 & CM APPL. 19619/2018 MSC AGENCY (INDIA) PVT. LTD......Petitioner Through:
VERSUS
UNION OF INDIA AND ORS......Respondents Ms. Anju Gupta & Mr. Roshan Lal Goel, Advs for UOI/R-1 (M:9654169406) 2/CONCOR 25 WITH + W.P.(C) 4169/2014 CMA CGM AGENCIES (INDIA) PVT. LTD......Petitioner Through:
VERSUS
2/CONCOR Mr. Amit Tiwari CGSC with Mr. Ayush Tanwar, Adv for UOI 26 WITH + W.P.(C) 4207/2014 HYUNDAI MERCHANT MARINE INDIA PVT LTD. 14:18 Through: Mr. Premtosh K. Mishra, CGSC with Mr. Manish Vashist & Ms. Sanya Kalsi, Advs for R-1/UOI versus 2/CONCOR 28 WITH + W.P.(C) 13099/2018 & CM APPL. 50863/2018 HYUNDAI MERCHANT MARINE INDIA PVT LTD Through: Appearance not given.
VERSUS
UNION OF INDIA & ORS.....Respondents 2/CONCOR Counsel for DRI 29 AND + W.P.(C) 9989/2019 M/S HAPAG LIYOD INDIA PVT. LTD.
THROUGH ITS AR RINKU VATS......Petitioner Through: 14:18 UNION OF INDIA AND ORS......Respondents 2/CONCOR CORAM: JUSTICE PRATHIBA M. SINGH JUSTICE 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 a 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 14:18 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 7th September, 2015, the Court was informed that in W.P.(C) 945/2014 out 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 7th 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.
4. The right of the respondents No.2&3 CCIL to so 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 22nd July & 31st July,
2015. 14:18
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 a 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 27th February, 2018, the ld. Single Judge of this Court, while considering the present batch of petitions directed the Customs Authorities to file a 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 27th February, 2018 reads as under:
14:18 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 a comprehensive report with this court which will detail out specifications vis-a-vis each petitioner and also the time frame within which they would de-stuff the container(s) and release the same to the concerned petitioners.
7. For this purpose, Commissioner of Customs will convene a 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 a "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 30th 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 30th 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 14:18 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 a 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 a period of three months from today.”
8. Further, on 01st August, 2019, the Court had passed further directions specific to the lead petition being W.P. (C) 945/2014 and the same are extracted here:
14:18 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 a period of one week from today, and DRI/Customs shall examine the same and issue a No Objection Certificate (NOC) within a 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 a period of four weeks, thereafter. In the event a NOC is granted, CONCOR shall auction and/or destroy the goods as the case may be within a 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 2nd 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 14:18 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 a decade only on such a small issue in respect of release of containers, a comprehensive status report was called for from Customs Department as also CONCOR. The relevant portion of the Order dated 10th December, 2024 is extracted hereunder:
14:18 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, a 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 a 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: S.No Container No. Arrival Remarks Present Status WPC No. 945/2014- HAMBURG SUD INDIA PVT. LTD. VS.UOI & ORS 1 SUDU1329915 05.11.2009 As per available records, not pending with Customs Transferred to CONCOR under Section 48 of the Customs Act, 1962 for disposal of goods WPC No. 2580/2018-MSc AGENCY INDIA PVT LTD. VS.UOI & ORS 1 DFSU7162624 26.03.2017 As per available CONCOR 48 of the 14:18 1962 for goods 2 GLDU0301411 03.02.2011 As per available CONCOR 48 of the WPC No. 4207/2014-HYUNDAII MERCHANT MARINE INDIA PVT. LTD.
VS UOI & ORS 1 HDMU2647744 02.04.2011 Detained by Customs (SIIB) (Export shipment) Does not pertain to ICD TKD lmport WPC No. 9989/2019-HAPAG LLOYD VS UOI & ORS. 1 FCIU3898845 11.08.2016 As per available CONCOR 48 of the 2 FSCU3290026 07.06.2013 As per available CONCOR 48 of the 3 GESU3907514 03.08.2016 As per available CONCOR 48 of the 1962 for 14:18 goods 4 HLXU1062987 14.07.2012 As per available CONCOR 48 of the 5 HLXU2130514 11.10.2008 As per available As per CONCOR mail dated 17.12.2024, Empty handed over to S/L post disposal of the cargo therein on 13.10.2021 6 HLXU2290488 07.02.2010 As per available CONCOR 48 of the 7 MLCU9701134 16.04.2007 As per available CONCOR 48 of the 8 BHCU4929116 05.08.2010 Hold by SIIB/DRI/Preventive As per 14:18 Empty container handed over to S/L post disposal of the cargo 9 CMUU4606789 18.10.2008 As per available CONCOR 48 of the 10 CPSU6447848 12.04.2014 As per available CONCOR 48 of the 11 FSCU9201920 29.08.2009 As per available As per CONCOR Empty container S/L post cargo therein on 20.10.2021 12 HLBU1151080 22.10.2014 As per available As per CONCOR 14:18 S/L post on 20.03.2023 13 HLBU1164488 10.09.2016 As per available CONCOR 48 of the 14 HLXU4581266 16.04.2011 As per available CONCOR 48 of the 15 HLXU4589694 10.08.2008 As per available As per CONCOR Empty handed over to S/L of the cargo therein on 23.09.2021 16 HLXU6012700 01.10.2012 As per available CONCOR 48 of the 1962 for 17 HLXU6097604 14.06.2009 As per available As per CONCOR S/L post on 04.03.2023 18 HLXU6239078 08.02.2013 As per available CONCOR 48 of the 19 HLXU6240042 11.08.2016 As per available As per CONCOR S/L on 12.10.2020, post auction goods 20 HLXU6592547 03.09.2016 As per available CONCOR 48 of the 14:18 21 TCLU8637924 17.11.2016 As per available CONCOR 48 of the 22 TCNU9960060 30.09.2012 As per available CONCOR 48 of the 23 WLNU9903714 13.02.2011 As per available CONCOR 48 of the WPC No. 13099/2018-HYUNDAI MERCHANT MARINE INDIA PVT.
LLTD VS UOI & ORS 1 HDMU6638587 17.06.2015 Detained by Customs (DRI) Goods have been confiscated. One of the Noticee had filed appeal before the SDM Kalkaji. 14:18 2 TEMU7234984 15.08.2016 As per available CONCOR for further action. 3 GESU1344896 08.10.2014 As per available 4 TCNU6007482 - As per available As per CONCOR Empty container handed over of the consignment on 25.07.2024 5 DFSU6752040 - As per available As per CONCOR Empty container of the on 26.07.2024 6 HDMU6404824 16.05.2013 As per available CONCOR 48 of the 7 BMOU2331782 17.07.2014 As per available CONCOR 14:18 48 of the 8 TCNU8653244 07.09.2014 As per available CONCOR 48 of the 9 HDMU6797172 13.06.2015 As per available Goods One of the Noticee filed an appeal before the SDM, Kalkaji. 10 DFSU6192882 - As per available As per CONCOR Empty container of the on 22.07.2024 11 GESU6490316 - As per available As per CONCOR 17.12.2024,, 14:18 of the 12 TCLU5894554 - As per available As per CONCOR Empty container of the 13 DFSU6670699 - As per available As per CONCOR 14 TEMU731979[9] - As per available As per CONCOR 15 HDMU6466282 - As per available As per CONCOR 14:18 container of the 16 CAIU9970949 13.05.2017 Detained by Customs (DRI) Goods Appeal filed by one of the noticee is pending in Delhi High Court 17 CAIU251953[2] - As per available 18 TCNU9002294 06.10.2014 As per available CONCOR 48 of the 19 DFSU6957098 07.10.2014 As per available CONCOR 48 of the 20 HDMU6816797 12.10.2014 As per available CONCOR 48 of the 1962 for 21 BSIU9267090 10.10.2014 As per available CONCOR 48 of the 22 DRYU9559306 07.09.2017 As per available CONCOR 48 of the WPC No. 677/2016-TRANS ASIAN SHIPPPING SERVICES PVT. LTD. VS.UOI & ORS 1 FCIU211926[2] 28.07.2009 As per available CONCOR 48 of the WPC No. 4169/2014-CMA CGM AGENCIES (INDIA) PVT. LTD VS.UOI & ORS 1 TGHU8477189 01.03.2011 As per available CONCOR 48 of the 1962 for 14:18 WPC No. 648/2016-TRANS ASIAN SHIPPPING SERVICES PVT. 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: S.No Container No. Arrival Remarks Present Status WPC No. 945/2014- HAMBURG SUD INDIA PVT. LTD. VS.UOI & ORS 1 FSCU9527291 26.04.2011 Detained by Customs (Preventive) Action for goods being initiated. 2 SUDU7903234 20.07.2011 Investigation Pending WPC No. 2580/2018-MSc AGENCY INDIA PVT LTD. VS.UOI & ORS 1 TCNU7667388 11.06.2011 Detained by Customs (DRI) WPC No. 4207/2014-HYUNDAII MERCHANT MARINE INDIA PVT. LTD.
VS UOI & ORS 1 HDMU6449238 17.09.2010 Detained by Customs Action for 14:18 WPC No. 9989/2019-HAPAG LLOYD VS UOI & ORS. 1 TGHU7231478 06.10.2008 Hold by Preventive Action for 2 TGHU8391085 24.01.2015 Hold by been 3 FCIU8486558 06.02.2016 Hold by 4 FCIU9158390 24.08.2016 Hold by been 5 GESU4680240 28.08.2016 Hold by 6 HLXU6582636 30.08.2016 Hold by 7 HLXU8434047 05.11.2016 Hold by been 14:18 8 TRIU9157462 17.10.2008 Hold by WPC No. 13099/2018-HYUNDAI MERCHANT MARINE INDIA PVT.
LLTD VS UOI & ORS 1 BSIU2519630 12.06.2016 Detained by Customs (Prev.) 2 HDMU6793217 16.01.2015 Detained by Customs (DRI) been 3 TEMU7307099 06.06.2015 Detained by Customs (SIIB) 4 BMOU4704400 16.06.2015 Detained by Customs (DRI) 5 TEMU7315052 - Detained by Customs (Prev.) been 6 TCNU7237685 06.10.2014 Detained by Customs Goods have been 14:18 WPC No. 677/2016-TRANS ASIAN SHIPPPING SERVICES PVT. 1 TLXU5402428 26.09.2007 Detained by Customs (DRI) also involved in police case. WPC No. 4169/2014-CMA CGM AGENCIES (INDIA) PVT. LTD VS.UOI & ORS 1 CLHU2837960 17.03.2011 Detained by Customs Disposal process is underway
14. Let the de-stuffing of the above said containers listed in paragraph 13 be effected by the Customs Department within a 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 a pending Police/Court case or some other investigation by the agencies such as CBI is ongoing.
18. In respect of the said 20 containers, let the containers be de-stuffed and be released to the respective shipping lines within a period of three months in the presence of the concerned investigation agency’s officials. 14:18
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 10th December, 2024.
21. The present petitions are disposed of in above terms. Pending applications, if any, are also disposed of.
PRATHIBA M. SINGH JUDGE AMIT SHARMA JUDGE DECEMBER 23, 2024/gs/Rahul/ms 14:18