Delhi High Court
Asia Huayu Metal Wire Mesh ... vs Principal Commissioner Of ... on 13 July, 2016
$~53
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 3400/2016
ASIA HUAYU METAL WIRE MESH
PRODUCTS (P) LTD ..... Petitioner
Through: Mrs. Anjali J. Manish and Mr.
Priyadarshi Manish, Advocates.
versus
PRINCIPAL COMMISSIONER OF
CUSTOMS & ORS. ..... Respondents
Through: Mr. Satish Aggarwala, Advocate for R-
2.
Mr. Pragya Bhushan and Mr Sanjay Khanna,
Advocates for R-4.
CORAM:
JUSTICE S.MURALIDHAR
JUSTICE NAJMI WAZIRI
ORDER
% 13.07.2016
1. There are two prayers in this writ petition filed by M/s Asia Huayu Metal
Wire Mesh Products (P) Ltd. The first is that a mandamus be issued to the
respondents to assess the goods imported by the petitioner against Bill of
Entry No. 4767708 dated 31st March, 2016. The alternative prayer is that
the respondents should be directed to make a provisional assessment of the
goods imported under Section 18 of the Customs Act, 1962.
2. The background of the present petition is that the petitioner applied for
and was granted an Import Export Code on 15th July 2015. The petitioner is
engaged in the import and trading of the metal wire mesh products. A
foreign supplier, i.e., Hebei Gaozheng Mining Equipments Co. Ltd. offered
the petitioner two consignments of wire mesh, which had been imported by
two different parties, who had abandoned the goods and had not taken the
delivery. It is stated that the foreign supplier on 30th November 2015
supplied to the petitioner the correct invoice, the packing list and the bill of
lading. A no-objection was issued by the previous consignee. On the basis of
the above documents, the Petitioner by letter dated 30th November 2015
requested the Deputy Commissioner of Customs (Import) to amend the bill
of lading (B/L). However, it was learnt by the petitioner that against the
said B/L, an alert had been issued by the Directorate of Revenue Intelligence
(„DRI‟).
3. Along with the counter affidavit filed in this writ petition by the Container
Corporation of India („CONCOR‟), the copy of the letter dated 13th July
2015 issued by the Customs has been enclosed. The said letter advises
CONCOR to put on hold the two containers till further orders and that the
containers should not be released without NOC from the Deputy Director
DRI DZU, New Delhi, on the above mentioned subject.
4. The Petitioner wrote to the DRI on 15th December 2015 requesting
issuance of the no-objection for amending the Import General Manifest
(„IGM‟). A further representation was made on 28th December 2015 to the
Commissioner of Customs (Import) for amendment of the IGM. In turn, the
Customs advised the petitioner to get clearance from the DRI.
5. It appears, that on 4th January 2016, the DRI wrote to the Principal
Commissioner of Customs (Import), pointing out that from the documents
submitted by the petitioner it appeared that the quantity of goods shown in
the copy of the bill of lading dated 19th May 2015 (26,300 Kgs) for one
container was not matching with the earlier bill of lading issued which
showed the quantity to be 23000 Kgs. It was pointed out that the value of the
goods shown in the two invoices also did not match. A reference was made
to the valuation shown in the invoices received from the electronic devices
of one Mr Raj Kumar Arora, an authorized representative of one of the
earlier consignees. Thereafter in para 5 of the said letter, the DRI requested
the Customs as under:
"5. ln view of the above stated facts, it is requested that the value
declared in the invoices resumed from the electronic devices of
Shri Raj Kumar Arora during investigation may be considered at
the time of assessment of the said two containers."
6. A difficulty has arisen as a result of DRI not categorically communicating
to the Customs that it has lifted the alert issued in respect of the two
containers. Without the lifting of the alert, it is not going to be possible for
the Customs to proceed with the assessment. Likewise, even as regards
CONCOR, unless the 'hold notices' issued by the DRI in respect of the
containers are withdrawn, the physical inspection and thereafter the removal
of the goods is not possible. Meanwhile, the ground rent charges in respect
of the two containers have been mounting.
7. It is in the above circumstances that the present writ petition was filed.
Notice was directed to be issued on 25th April 2016 requiring the replies to
be filed within two weeks. At the request of the DRI and the CONCOR,
further time was granted on 18th May 2016. When the matter was listed on
11th July 2016, a further request was made by Mr. Satish Aggarwala, learned
counsel for the DRI, that he was yet to obtain instructions and, therefore, at
his request the matter was kept for today.
8. Mr Aggarwala has today handed over an affidavit dated 12 th July 2016
sworn by Mr. S.K. Mishra, Sr. Intelligence Officer of the DRI. While the
affidavit virtually repeats whatever has been stated in the letter dated 4th
January 2016 issued by the DRI to the Customs, it is completely silent on
the lifting of the alert issued in respect of the two containers. Mr Aggarwala
sought some more time to obtain specific instructions on this aspect.
9. The Court considers the request for further time to be unreasonable for
the simple reason that the entire purpose of the Petitioner filing the present
petition was to get the alert notice issued by the DRI removed and this
petition itself has been pending since 25th April 2016. The demurrage
charges have been mounting, and for no fault of the Petitioner, it is unable to
proceed with the assessment of the goods by the Customs and the ultimate
clearance of the goods.
10. In the circumstances, the Court proceeds on the basis that the letter
written by the DRI on 4th January 2016 to the Customs requesting the
Customs to go ahead with the assessment subject to the requests made by the
DRI in para 5 of the letter, should be taken as the DRI lifting the alert in
respect of the said two containers. Without the alert being lifted, it is not
going to be possible for the Customs to proceed to assess the consignments.
11. Accordingly, the writ petition is disposed of by issuing following
directions:
(a) The Respondents will proceed hereafter on the basis that the alert issued
by the DRI in respect of the two containers in question stands removed;
(b) The Customs will write to the CONCOR, i.e., Respondent No. 4, not
later than one week from today, giving its no-objection for the physical
inspection of the goods; and
(c) The Customs authorities will proceed with the assessment and complete
it within a period of two weeks thereafter subject to the petitioner complying
with all the formalities and requirements of Respondent no.4.
12. Dasti.
S.MURALIDHAR, J
NAJMI WAZIRI, J
JULY 13, 2016
kk
