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Judgment
H.N. Devani, J.—By this petition under Article 226 of the Constitution of India, the petitioner seeks the following substantive relief:
[37] The petitioners, therefore, pray:
[a] that this Hon''ble Court be pleased to issue a Writ of Certiorari, or a Writ in the nature of Certiorari, or any other appropriate Writ, Order or direction, leading to the issuance of the seizure vide Panchnama dated 28th April, 2010 (Annexure-H hereto) and the impugned provisional order dated 16th July 2010 (Annexure-L) and after going into the legality, validity and propriety thereof, to quash and set aside the same;
[b] that Hon''ble Court be pleased to issue a Writ of Mandamus, or a Writ in the nature of Mandamus, or any other appropriate Writ, Order or direction, directing the Respondents to forthwith allow the said goods to be shipped unconditionally to Fujirah or any other port outside India.
The facts of the case as appearing in the petition are that the petitioner is a Company incorporated under the laws of the United Kingdom and is, inter alia, engaged in the business of trading in petroleum products. During the course of its business, the petitioner brought a consignment of 34,272.066 MTS of Gas Oil (HSD) per vessel "MT Gan Venture" and filed cargo declaration in Form-III, i.e., IGM No. 14672 with the declaration that the said goods are transshipment goods to be transshipped to any foreign port. Thereafter vide letter dated 30.11.2009, the petitioner requested for permission to discharge the cargo for transshipment, which was granted by the proper officer. On 05.04.2010, on behalf of the petitioner, its Customs House Agent filed transshipment permission No. 1 for transshipment of the said goods out of India in respect of which the vessel had also arrived at Kandla. At this stage, the respondents raised an objection to the effect that in absence of declaration of any foreign port for transshipment at the time when the said goods were brought into India, the said goods cannot be treated as goods meant for transshipment, but were required to be considered as imported in India and as such, would be liable to be confiscated, since the import of Gas Oil (HSD) is canalized for import only through the State Trading Enterprise i.e. Indian Oil Corporation Ltd.
The petitioner, therefore, addressed letters dated 8th and 9th April 2010 to the Director General of Foreign Trade, seeking clarification regarding the applicability of restrictions of the canalization and permissibility of import of the said goods for transshipment. Vide letter dated 15.4.2010, the Director General of Foreign Trade clarified that the said goods were transshipment cargo and hence, the transshipment of the said goods should be allowed. Vide letter dated 26.4.2010, the petitioner requested the respondents to allow the petitioner to transship the goods in question outside India after detaining 20% of cargo equal to 20% value. Instead of permitting the petitioner to transship the said goods to Fujirah, the respondents seized the same under a panchnama dated 28.4.2010. Vide letter dated 30.4.2010, the petitioner again requested the respondents to immediately release the said goods for transshipment to Fujirah. The request was reiterated through the Customs House Agent vide letter dated 22.6.2010. Vide the impugned order dated 16.07.2010, provisional release of the goods in question has been permitted, subject to the petitioner executing a bond for the full value of the goods seized as well as executing a bank guarantee of Rs. 10 crores. Being aggrieved, the petitioner has filed the present petition seeking the relief noted hereinabove.
Mr. Hardik P. Modh, learned advocate for the petitioner has challenged the seizure of the good in question as well as the order of provisional release on merits. However, he has mainly placed reliance upon a judgment and order rendered by this Court in a writ petition filed by the petitioner being Special Civil Application No. 7134 of 2010 where, in a similar set of facts, the respondents were directed to permit the transshipment of the goods within a stipulated period upon the petitioner furnishing a bank guarantee of Rs. 5 crores accompanied by a corporate bond of the full amount of the value of the goods, subject to filing an undertaking before the adjudicating authority to the effect that the petitioner shall pay the amount assessed under the final assessment order as may be framed by the respondent No. 3 subject to its right to appeal. It is submitted that the facts of the present case being more or less identical to the facts of the said case, similar relief is required to be granted in the present case also.
Mr. P.S. Champaneri, learned Assistant Solicitor General appearing on behalf of the respondents is not in a position to dispute the aforesaid position. However, it is submitted that the process for issuance of show cause notice is already underway and show cause notice is likely to be issued within a short time.
A perusal of the order dated 12.08.2010 made in Special Civil Application No. 7134 of 2010 indicates that the facts of the said case were more or less similar to the facts of the present case, except that in the facts of the said case, pursuant to the order of seizure, a show cause notice had also been issued against the petitioner, which was also subject matter of challenge in the said petition. At the time of admitting the said petition and granting interim relief, the Court had expressed the prima facie view that the provisions of Section 48 of the Customs Act, 1962 will not apply to the facts of the case, as admittedly the goods in question are not lying within the Customs Station of Kandla and Mundra Port.
Considering the facts of the present case, in the light of the orders dated 15.07.2010 and 12.8.2010 made in Special Civil Application No. 7134 of 2010, which involved more or less similar facts, the Court is of the view that the petitioner is entitled to similar relief as granted in the said petition.
In the light of the aforesaid discussion, the petition is disposed of with the following directions:
(i) The petitioner shall file an undertaking setting out the outer limit which shall not be later than 15th September, 2010 within which the goods in question shall be transshipped outside India.
(ii) The undertaking shall also state that in case show cause notice is issued pursuant to the order of seizure, the petitioner shall pay the amount as may be assessed under the final assessment order, if any, as may be framed by the concerned authority, subject to its right to appeal.
(iii) The respondents No. 2 and 3 are directed to permit transshipment of the goods within the period stated in the undertaking, which shall not be later than 15th September, 2010.
(iv) The petitioner shall also furnish a bank guarantee to the tune of Rs. 5 crore (Rupees five crores only) which shall be kept valid till the final assessment order is passed.
(v) The bank guarantee shall also be accompanied by a corporate bond of the full amount of the value of the goods which is stated by the petitioner to be Rs. 107 crores.
(vi) The right of the petitioner to claim refund, if any, u/s 18 of the Act, shall be subject to the order of final assessment.
(vii) In light of the statement made by the learned Assistant Solicitor General that show cause notice is likely to be issued within a short time, it is further directed that the respondent No. 3 shall frame the final assessment order within a period of four months from the date of receipt of the show cause notice by the petitioner.
The petition stands disposed of, accordingly, in the above referred terms, with no orders as to costs. Notice is discharged.