Gujarat High Court
Viterra India Private Ltd vs Union Of India on 31 July, 2025
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4510 of 2018
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/SPECIAL CIVIL APPLICATION NO. 4510 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
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Approved for Reporting Yes No
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VITERRA INDIA PRIVATE LTD.
Versus
UNION OF INDIA & ORS.
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Appearance:
MR. SAURABH SOPARKAR, SR. ADV. WITH PRIYAL M PARIKH(7593) for
the Petitioner(s) No. 1
ADVOCATE NOTICE NOT RECD BACK for the Respondent(s) No. 1
MR ANKIT SHAH(6371) for the Respondent(s) No. 2,3,4
RULE SERVED for the Respondent(s) No. 5
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
and
HONOURABLE MR. JUSTICE PRANAV TRIVEDI
Date : 31/07/2025
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE PRANAV TRIVEDI)
1. Heard learned Senior Counsel Mr. Saurabh
Soparkar with learned advocate Ms. Priyal
Parikh for the petitioners and learned
advocate Mr. Ankit Shah for the respondents.
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2. By way of the present petition, the
petitioners have prayed for following prayers:
"(a) That this Hon'ble Court be pleased to
issue a writ in the nature of mandamus or any
other writ, order or direction under Article
226 of the Constitution of India calling for
the records pertaining to the Petitioners
case and after going into the validity and
legality thereof to quash and set aside the
cancellation of Bills of Entry No. 2166567,
2169755, 2166682, 2166860, 2166942, 2167181
and 2167350 dated 20.06.2017;
(b) Allow the amendment of the IGM No.
2167473 dated 17.06.2017 to reflect the
Petitioners as the new buyers of the
consignment in question;
(c) In the alternative, if the Petitioners be
permitted to clear the consignment under the
new Bill of Entry No.5335128 dated 23.02.2018
by applying the rate of duty applicable as on
the date of import, i.e. 20.06.2017;
(d) As an interim relief, permit provisional
clearance of the 32250 MT of yellow peas on
provisional basis upon execution of a bond
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for the full value of the goods or subject to
such conditions as the Hon'ble Court may deem
fit;"
3. The facts leading to the filing of the
present petition are as under:
3.1 The petitioner is a Private Limited
Company, inter alia, engaged in the trading of
agricultural goods such as pulses, grain,
wheat, etc.
3.2 Respondent No. 5 is the shipping agent who
has filed IGM No.2167473 dated 17.06.2017
under the provisions of Customs Act, 1962 and
who has filed the application dated 4.12.2017
for amendment of the IGM, to amend the name of
the consignee from 'Sharp Corp Ltd to that of
'Agricore Commodities Pvt. Ltd.
3.3 It is the case of the petitioners that
they are the new and bonafide buyers of the
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goods covered imported vide Bills of Entry No.
2166567, 2169755, 2166682, 2166860, 2166942,
2167181 and 2167350, all dated 20.06.2017
(hereinafter referred to as "the Bills of
Entry dated 20.06.2017"), after their
importation. Therefore, the Petitioners
qualify as interested parties in the goods
imported vide the aforementioned Bills of
Entry dated 20.06.2017. The Importer has been
a long-standing client of the Seller and they
have been commercially involved for the last
9-10 years.
3.4 The petitioners are filing the present
Special Civil Application against the
arbitrary cancellation of the Bills of Entry
dated 20.06.2017 at the instance of the
Respondent No.2, instead of amending the bills
of entry to substitute the name of the
petitioners as the importer. The petitioners
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are also challenging the action of the
respondents in directing the petitioners to
file the fresh bills of entry for the goods
covered by the earlier bills of entry dated
20.6.2017 and the application of the new rate
of duty as on the date of filing of the fresh
bill of entry, i.e. 23.02.2018 as mentioned in
their letter dated 06.03.2018.
3.5 Vide the above referred Bills of Entry
dated 20.06.2017, Sharp Corp. Ltd.
(hereinafter referred to as "Importer"]
imported Canadian whole yellow peas from
Glencore Agriculture BV, Netherlands
(hereinafter referred to as the "Seller"], in
terms of a contract dated 20.01.2017, on CIF
basis.
3.6 It is the case of the petitioners that
pursuant to the contract entered into between
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the Importer and the Seller, the vessel, 'RB
Leah' was carrying 21000 MTS of lentils and
47250 MTS of yellow peas as per the terms of
the contract.
3.7. Because of their previous relationship,
the payment term as between the Importer and
the Seller was Cash Against Delivery (CAD).
According to this term, payment was to be made
to the Seller five days prior to the arrival
of the vessel at Mundra port. However, prior
to and even post the arrival of the vessel,
the Importer failed to make the payment for
the goods as per the contract and an extension
of time for making the payment was sought till
the end of July 2017.
3.8 It is the case of the petitioners that as
the Importer could not take delivery of the
cargo, they requested the Seller to allow
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discharge of the goods from the vessel against
a letter of indemnity dated 23.6.2017, so as
to avoid demurrage. Because of the business
relationship, the same was agreed to by the
Seller.
3.9. The goods covered by the aforesaid bills
of entry are classifiable under Heading 07.13
(Tariff Item 01731000) of the First Schedule
to the Customs Tariff Act, 1975 (hereinafter
referred to as the "Customs Tariff"). As on
the date of importation, i.e. 17.06.2017 or on
the date of filing of bills of entry (namely
20.6.2017), yellow peas were exempt wholly and
unconditionally from the payment of Basic
Customs Duty (BCD) by virtue of S.No.21 of
Notification No. 12/2012-Cus dated 17.03.12.
Further, no excise duty was leviable on goods
falling under Heading 07.13. Consequently, no
Additional Duty of Customs (CVD) was leviable
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on the goods falling under Heading 07.13 and
imported into India. Special Additional Duty
(SAD) leviable under Section 3(5) of the
Customs Tariff Act too was exempt in terms of
S. No.22 of Notification No.21/2012-Cus. dated
17.3.2012. Therefore, no duty of customs was
leviable on the said imports at the time of
filing the Bills of Entry i.e. on 20.06.17 by
the Importer. The goods are also freely
importable and there is no restriction on the
importation of these goods into India. The
only requirement is to produce a phytosanitary
certificate under the Plant Quarantine
Regulations for ensuring that the consignments
are free from infestation. At the time of
importation too, these certificates were
available in respect of the consignment in
question.
3.10 It is further the case of the
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petitioners that accordingly, out of the whole
consignment which was imported by the vessel
RB Leah, 21000 MTS of lentils and 15000 MTS of
yellow peas were cleared for home consumption
by the Importer upon completion of all the
required formalities and paperwork. No duty
was paid on the subject goods.
3.11. The remaining 32250 MTS of yellow peas
covered by the subject Bills of Entry dated
20.06.2017 were not cleared for home
consumption. The present petition pertains to
this portion of the consignment which was
imported into India vide the vessel R.B. Leah
(same vessel as above).
3.12. Since it was understood as between the
parties that the Importer would not be able to
fulfill the contract, a letter dated
15.09.2017 was also filed by the Importer with
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the Deputy Commissioner of Customs, Mundra. In
the letter dated 15.09.2017 (filed on
4.12.2017) by which no objection was given by
the original importer, it was categorically
mentioned by the Importer that they have no
objection to the IGM and the Bill of Entry
being amended to indicate the new buyer.
3.13 It is the case of the petitioners that
the Petitioners and the Seller are related
parties. Based on negotiations and after
taking into consideration the prevailing
market demand for peas and other factors, a
Contract dated 03.10.2017 was entered into
between the Petitioners and the Seller for the
sale of 32250 MT of the yellow peas.
3.14 The shipping line was reluctant to issue
a revised Bill of lading in the name of the
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Petitioners who could not have obtained
delivery of the cargo based on the non-
negotiable bill of lading which had been
earlier issued to the Importer. Finally, after
a month of persuasion, the shipping line
agreed on 10.11.2017 to issue a new Bill of
lading showing the Petitioners as the
consignee of the goods in question.
3.15. Meanwhile, the taxation regime in India
saw the implementation of the Goods & Services
Tax (GST).
3.16 In November 2017, in terms of S.No.20A of
Notification No. 84/2017-Cus. dated 08.11.17
BCD on the imported goods came to be imposed
at the rate of 50%. However, the Integrated
Goods and Services Tax (IGST) was still exempt
vide S.No.45 of the Notification No. 2/2017-
Integrated Tax (Rate) dated 28.06.17.
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3.17 It is the case of the petitioner that
by way of communication dated 5.10.2017, the
Deputy Commissioner of Customs was informed
about failure of importer to take the delivery
of consignment covered by Bill of Entry dated
20.6.2017. It was, therefore, intimated to the
authority that 32250 MT of goods have,
therefore, been sold to the petitioners. In
wake of such factual changes, a request was
made for amending the IGM so as to enable
consequential amendment to the Bills of Entry.
Pursuant thereto, an application was made by
the petitioner qua amendment of Import General
Manifest (IGM). For amendment of IGM, various
communications were addressed by the
petitioners. It is the case of the petitioners
that despite making regular follow-ups, there
was no response from the respondent for
amendment of IGM. Therefore, left with no
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alternative, petitioner filed a fresh Bill of
Entry covering the consignment in question,
under protest. Petitioners had filed new Bill
of Entry on 22.2.2018 under protest.
3.18 It is the case of the petitioners that
fresh Bill of Entry dated 23.2.2018 was being
assessed to duty at rate applicable on the
date of filing of Bill of Entry, treating them
to be fresh imposed. Therefore, the
petitioners communicated to the respondent,
requesting for clearance of cargo by applying
the rate of duty as on 20.6.2017 as the goods
were imported on the said date. However, no
response was received from the respondent
authorities to the petitioners. Since no
response was forthcoming from the respondent
and taking into account the nature of goods in
question, petitioners had preferred the
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present writ-petition on 7.3.2018. Thereafter,
during pendency of the present writ-petition,
a communication was addressed by the
respondent authorities on 8.3.2018, informing
the petitioners that the consignment in
question covered by fresh Bill of Entry dated
23.2.2018 will have to be cleared at the rates
as applicable on date of filing the Bill of
Entry. This is the core controversy in the
present writ petition.
4. Mr. Saurabh Soparkar, learned Senior
Counsel submitted that the cancellation of
Bill of Entry No. 2166567 and other Bill of
Entries dated 20.6.2017 by the respondent is
perverse and not in accordance with the
provisions of Customs Act and in gross
violation of principles of natural justice.
The respondent had cancelled the Bill of Entry
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without intimation to the petitioners who are
interested parties in the subject matter.
5. It was further submitted by Mr. Soparkar
that the provisions of Customs Act or Rules
does not require the Bills of Entry to be
cancelled for getting the IGM amended. The
petitioners had requested for amendment of IGM
without resorting to the cancellation of Bill
of Entry. By cancelling the subject Bill of
Entry, the respondent has not only acted
beyond the authority granted to them, but have
violated principles of natural justice. It was
further submitted that numerous Circulars have
been issued containing instructions of
incorrect and incomplete IGMs. Circular
No.45/2005-Customs clarified the issue of
major amendments. If the proper officer is
satisfied that import manifest is incorrect or
incomplete and there was no fraudulent
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intention then he may permit to amend or
supplement it. Therefore, the adjudication
would only arise if there was fraudulent
intention. In the present case, the name of
the importer is sought to be amended in the
IGM. It will not tantamount to major amendment
and it should be permitted to be done without
adjudication if there is no fraudulent
intention. It was further submitted that
reason behind amendment of IGM is only on
account of commercial reasons. The purpose was
to reflect the change in ownership of the
goods so as to allow the true owner of the
goods to take possession. The amendment in IGM
would not result into revenue implications.
6. It was further submitted by Mr. Soparkar,
learned Senior Counsel that Section 15 of the
Customs Act provides for mechanism for
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determining applicable rates of duty on
imported goods. In the instant case, the Bill
of Entry for home consumption was filed in
2017. Therefore, in terms of Section 15 of the
Customs Act, the date of duty would be
20.6.2017. Therefore, according to Mr.
Soparkar, prayers as made in the present writ
petition ought to be granted.
7. Per contra, Mr. Ankit Shah, learned
advocate for the respondent defended the
action of the respondent authority and
submitted that the action taken by the
respondent authorities are just and proper and
the prayers made in the writ petition are
frivolous and are required to be dismissed.
8. After hearing the arguments canvassed by
learned advocates for the respective parties,
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a short question that arises for consideration
is with regard to rate of duty for goods for
home consumption vis-a-vis the date of Bill of
Entries. It is not in dispute that the
original Bill of Entry was filed on 20.6.2017.
Thereafter, due to inability of the importer
to clear the goods, the present petitioner had
entered the frame.
9. Section 15 of the Customs Act, 1962
discusses about the determination of rate of
duty. For ready reference, Section 15 is
reproduced hereinbelow:
15. Date for determination of rate of duty
and tariff valuation of imported goods.
(1) The rate of duty and tariff valuation, if
any, applicable to any imported goods, shall
be the rate and valuation in force,--
(a) in the case of goods entered for home
consumption under section 46, on the date on
which a bill of entry in respect of such
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goods is presented under that section;
(b) in the case of goods cleared from a
warehouse under section 68, on the date on
which [a bill of entry for home consumption
in respect of such goods is presented under
that section];
(c) in the case of any other goods, on the
date of payment of duty:
[Provided that if a bill of entry has been
presented before the date of entry inwards of
the vessel or the arrival of the aircraft
[or the vehicle] by which the goods are
imported, the bill of entry shall be deemed
to have been presented on the date of such
entry inwards or the arrival, as the case may
be.
9.1 Section 46 of the Customs Act deals with
goods entered for home consumption. Section 46
is reproduced hereinbelow:
"Section 46. Entry of goods on importation.
(1) The importer of any goods, other than
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goods intended for transit or transhipment,
shall make entry thereof by presenting
[electronically] [on the customs automated
system] to the proper officer a bill of entry
for home consumption or warehousing [pin
such form and manner as may be prescribed]:
[Provided that the Principal Commissioner of
Customs or Commissioner of Customs] may, in
cases cases where it is not feasible to make
entry by presenting electronically on the
customs automated system], allow an entry to
be presented in any other manner:
Provided further that] if the importer makes
and subscribes to a declaration before the
proper officer, to the effect that he is
unable for want of full information to
furnish all the particulars of the goods
required under this sub-section, the proper
officer may, pending the production of such
information, permit him, previous to the
entry thereof (a) to examine the goods in the
presence of an officer of customs, or (b) to
deposit the goods in a public warehouse
appointed under section 57 without
warehousing the same.
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(2) Save as otherwise permitted by the proper
officer, a bill of entry shall include all
the goods mentioned in the bill of lading or
other receipt given by the carrier to the
consignor.
[(3) The importer shall present the bill of
entry under sub-section (1) [before the end
of the day (including holidays) preceding the
day] on which the aircraft or vessel or
vehicle carrying the goods arrives at a
customs station at which such goods are to be
cleared for home consumption or warehousing:
[Provided that the Board may, in such cases
as it may deem fit, prescribe different time
limits for presentation of the bill of entry,
which shall not be later than the end of the
day of such arrival:
Provided further that] a bill of entry may be
presented [at any time not exceeding thirty
days prior to] the expected arrival of the
aircraft or vessel or vehicle by which the
goods have been shipped for importation into
India:
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[Provided also that] where the bill of entry
is not presented within the time so specified
and the proper officer is satisfied that
there was no sufficient cause for such delay,
the importer shall pay such charges for late
presentation of the bill of entry as may be
prescribed.]
(4) The importer while presenting a bill of
entry shall *** make and subscribe to a
declaration as to the truth of the contents
of such bill of entry and shall, in support
of such declaration, produce to the proper
officer the invoice, if any, [and such
other documents relating to the imported
goods as may be prescribed].
[(4A) The importer who presents a bill of
entry shall ensure the following, namely:--
(a) the accuracy and completeness of the
information given therein;
(b) the authenticity and validity of any
document supporting it; and
(c) compliance with the restriction or
prohibition, if any, relating to the goods
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under this Act or under any other law for the
time being in force.]
(5) If the proper officer is satisfied that
the interests of revenue are not
prejudicially affected and that there was no
fraudulent intention, he may permit
substitution of a bill of entry for home
consumption for a bill of entry for
warehousing or vice versa.
9.2 Section 2(26) defines an importer and the
same is reproduced hereinbelow:
"2(26) Importer, in relation to any goods
at any time between their importation and
the time when they are cleared for home
consumption, includes [any owner,
beneficial owner] or any person holding
himself out to be the importer. "
9.3 Under Section 46 of the Customs Act, the
importer of the goods makes entry by
presenting Bill of Entry for home consumption
of warehouses in prescribed form. When such
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Bill of Entry for home consumption is filed,
the date of presentation is relevant for
fixing the rate of duty of goods imported. It
is not in dispute that in the instant case,
the Bill of Entry was filed on 20.6.2017.
However, subsequently the persons who
presented the Bill of Entry did not clear the
goods. It was subsequent to the presentation
of the Bill of Entry, the ownership of the
goods changed to the present petitioners.
Present petitioner became importer as per
Section 26 of the Customs Act and, therefore,
he was directed to file a fresh Bill of Entry
which the petitioner did under protest.
Therefore, the core question would be the rate
of duty applicable on the relevant date of
Bill of Entry.
9.4 Section 12 of the Customs Act provides
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that the custom duty shall be levied at such
rates as may be specified under the Customs
Tariff Act, 1975. The rate of duty specified
under Section 15 and the valuation of the
goods entered for home consumption is
prescribed under Section 46. Therefore, the
question would be the rate of duty applicable
to an imported goods and the rate of valuation
in force. For applicability of the duty, the
important aspect is that the date on which the
goods entered for home consumption as per
Section 46 and the date on which the Bill of
Entry was presented.
10. It would not be material if the ownership
changes hands thereafter and goods were
subject to ownership to some another person.
The rate of duty would be applicable on the
date of presentation of the first Bill of
Entry when it was filed for home consumption.
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In the facts of the case, the Bill of Entry
was filed on 20.6.2017 and thereafter the
ownership was changed in the name of the
petitioner. Therefore, the rate of duty would
be applicable on the date when goods entered
for home consumption and the date of Bill of
Entry presented under Section 46 of the Act.
This issue has been covered by decision of
Bombay High Court in case of Miss Anjali S.
Lunkad v. Union of India and another, reported
in 1990 SCC OnLIne Bom 84. Paragraphs No. 15,
16, 17 and 18 of the said decision read as
under:
"15. Under Section 2(26) an 'importer' in
relation to any goods at any time between
their importation and the time when they are
cleared for home consumption, includes any
owner or any person holding himself out to be
the importer. An "importer", therefore, as
per this definition would include any person
who becomes the owner of the goods between
the time of their importation and the time
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when they are cleared for home consumption.
This definition is undoubtedly wide enough to
include the petitioners in these writ
petitions also.
16. What is important, however, is that the
duty of customs is levied not on the importer
but on the goods imported into or exported
from India. Section 12 of the Customs Act,
1962 provided that duties of Customs shall be
levied at such rates as may be specified
under the Customs Tariff Act, 1975 or any
other law for the time being in force, on
goods imported into, or exported from, India.
The rate of duty is specified under Sec.15 of
the Customs Act. Under Sec.15(1) the rate of
duty applicable to any imported goods shall
be, inter alia, the rate and valuation in
force, (a) in the case of goods entered for
home consumption under Section 46, on the
date on which a bill of entry in respect of
such goods is presented under that section.
The rest of Section 15 is not relevant for
the present purpose.
17. Under Section 46 of the Customs Act, the
importer of any goods shall make entry
thereof by presenting to the proper officer a
bill of entry for home consumption or
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warehousing in the prescribed form. In view
of this section, therefore, after the goods
are imported into India the importer has to
file a bill of entry either for home
consumption or for warehousing in the
prescribed form to the proper officer. When
such bill of entry for home consumption is
filed, the date of presentation of the bill
of entry is the date which is relevant for
fixing the rate of duty on the goods so
imported.
18. In the present case in respect of both
writ petitions Nos. 719/90 and 71/90 the
bills of entry were presented by the original
importers prior to the date of the new
notification which came into effect from 1st
November 1989. It is true that these bills of
entry were not presented by the present
petitioners. They were presented by the
original importers. But this can make no
difference to the determination of the rate
of duty. At the time when these bills of
entry were presented, the person who
presented these bills of entry was the
"importer" within the definition of Section
2(26) of the Customs Act. It was only
subsequent to the presentation of the bill of
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entry that the ownership of the goods
changed. The present petitioners became the
owners of these goods and therefore became
the 'importer' within the meaning of the term
under Section 2(26) of the Customs Act after
the presentation of the bill of entry. They
are, therefore, entitled to have their names
substituted in the bills of entry so
presented as also to have the Import General
Manifest amended to show them as importers.
But, for determining the rate of duty, the
relevant date is the date on which the bill
of entry was presented for home consumption
by the importer under Sec. 46 read with Sec.
15(1). Valid bills of entry for home
consumption in respect of these goods were
presented by persons who were then the
importers, prior to 1st November 1989. The
rate of duty, therefore, is the duty
prevailing prior to 1st November 1989."
11. In view of above observations and
considering the facts of the case, present
petition succeeds. The order for cancellation
of Bills of Entry Nos. 2166567, 2169755,
2166682, 2166860, 2166942, 2167181 and
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2167350 dated 20.06.2017 are hereby quashed
and set-aside and the respondents are directed
to apply rate of custom duty applicable as on
the date of import i.e. 20.6.2017.
12. In view of the foregoing reasons, the
present petition is allowed. Rule is made
absolute to the aforesaid extent. No order as
to costs.
13. The connected Civil Application also
stands disposed of.
(BHARGAV D. KARIA, J)
(PRANAV TRIVEDI,J)
SAJ GEORGE
