AI Structured Summary
Not yet generated for this judgment
Judgment
B. Subhashan Reddy, C.J.—This writ appeal is directed against the order of the learned single Judge in a matter arising under Customs Act,
1962. The appellant, which is a Private Limited Company registered under the Companies Act, 1956 having its factory in Andhra Pradesh,
manufactures steel ingots using imported non-alloy steel Melting scrap (NASMS). The appellant is registered with the Central Excise Department
and also obtained necessary Import-Export Code from the Ministry of Commerce for the purpose of its imports. Whenever goods are imported,
the Bills of Entry has to be filed with the Customs authorities and goods have to be cleared on payment of appropriate customs duty. The appellant
had imported 46 containers, and insofar as 39 containers are concerned the Customs Duty was assessed at Rs.11,85,174/- u/s 17 of the Customs
Act and for other 7 containers the customs duty is still to be assessed. The customs duty is computed on the basis of the concessions given in the
Notification No.21/2002 dated 1.3.2002 (vide Sl.No.200). They were sent as sea cargo landed by ship at the Chennai Port, and have to be
transhipped to Bangalore being final destination. Necessary Bills of transhipments are filed with the Chennai Customs through the steamer agents
for transhipment of the cargo to CID, Bangalore. When the ship containing the cargo reached Chennai Sea Port, the Customs officials detained the
above 46 containers and initiated investigation in respect thereof, on the allegation that the containers do not contain scrap materials but serviceable
materials, and in order to avoid higher customs duty, the appellant has misdescribed the goods as scrap and consequently evaded actual tax
payable, and after effecting seizure of the materials u/s 110 of the Customs Act, issued show cause notice u/s 110(2) of the Customs Act seeking
explanation as to why the differential customs duty of Rs.1,36,67,079/- along with the penalty should not be levied, apart from confiscation of the
goods. Questioning the same, the appellant had filed writ petitions before the Karnataka High Court as also in Madras High Court. It is said that
no orders have been passed in the writ petition pending before the Karanataka High Court, but insofar as W.P.No.18737 of 2003 filed before the
Madras High Court is concerned, the same was dismissed by the learned single Judge vide his order dated 19.09.2003 on the ground that the writ
petition is not maintainable at the show cause notice stage, that the appellant is obliged to answer the allegations made in the show cause notice,
and that even the ground of jurisdiction i.e, the Madras Port is not having jurisdiction to probe into the matter and it is only the customs authorities
at the Bangalore, is to be raised before the authority who has issued show cause notice.
Mr. Satish Parasaran, the learned counsel appearing for the appellant submitted that if the authority has got jurisdiction to issue show cause
notice, then the appellant is obliged to submit explanation to the authority and then plead, but if the authority is not having any jurisdiction, then the
writ petition is not barred. He also submitted that even if the material is not fully scrap, but is found to be serviceable, the chance of mutilating the
material has to be given in accordance with the Letter No.F446/9/95 Customs dated 16.6.1995 issued by the Central Board of Excise and
Customs. The learned counsel for the appellant further submitted that the authorities are twisting the provisions u/s 54 the Customs Act and instead
of testing the bona fides of the transhipment, the authorities are testing the nature of the goods. His submission is that the Madras Port can only
verify the documents to satisfy about the bona fides of the transhipment i.e., the place of loading of the materials with the distinctive numbers and
then the place of destination, and if the goods are covered by the Bills of Lading, then the transhipment has to be allowed, and aspect of proper
customs duty payable can be considered only at Bangalore and Madras Port officials have got no jurisdiction.
Mr. V.T.Gopalan, learned Additional Solicitor General appearing for the respondents submitted that the appellant is used to this kind of mal-
practices of importing serviceable materials under the guise of they being scrap and avoiding payment of proper customs duty, and the customs
authorities at Madras Port are amply authorized under law to investigate with regard to the true nature of the material imported, and if it is found to
be wrongly described then take action to levy the correct duty, apart from confiscation of goods as the circumstances may warrant, and order of
the learned single Judge dismissing the writ petition as not maintainable is perfectly valid and is not liable to be interfered.
Having regard to the facts and legal contentions raised, we found it not permissible for us to deal with the merits as to whether goods conform to
scrap or serviceable material and what should be the proper customs duty and whether confiscation can be resorted to. We only propose to go
into the jurisdiction issue as it cuts into the very root of the matter as in the event of second respondent not having jurisdiction to probe into the
matter with regard to the nature of the goods imported and the proper duty payable thereon and the consequential penal action, then action taken
so far including show cause notice have to be termed as illegal and without jurisdiction. We now go into the merits of the contentions on the above
jurisdictional issue.
Section 54 of Customs Act deals with transhipment of goods without payment of duty. Sub-section (1) contemplates presentation of Bill of
Transhipment to the proper officer in the prescribed form whenever any goods are imported into a Customs Station. Proviso to sub-Section (1)
makes an exception that where the goods are transhipped under an international treaty or bilateral agreement between the Government of India
and the Government of a foreign country, a declaration for transhipment is sufficient. Sub-section (2) deals with imports for the purpose of
transhipment to any place outside India. Sub-section (3) is the relevant Section, which reads,
Transhipment of goods without payment of duty.-
(1) .......
(2) .......
(3) Where any goods imported into a customs station are mentioned in the import manifest or the import report, as the case may be, as for
transhipment-
(a) to any major port as defined in the Indian Ports Act, 1908 (15 of 1908) or the customs airport at Mumbai, Calcutta, Delhi or Chennai, or any
other customs port or customs airport which the Board may, by notification in the Official Gazette, specify in this behalf, or
(b) to any other customs station and the proper officer is satisfied that the goods are bona fide intended for transhipment of such customs station,
the proper officer may allow the goods to be transhipped without payment of duty, subject to such conditions as may be prescribed for the due
arrival of such goods at the customs station to which transhipment is allowed.
Import Manifest (Vessels) Regulations, 1971 and Goods Imported (Conditions of Transhipment) Regulations, 1995, are framed in exercise of the
rule-making power under the Act. In the Regulations of 1971, manner of declaring cargo is provided. In the Regulations of 1995, the conditions
governing the transhipment are stated. Under Regulation 3 of 1995 Regulations, transhipment shall be allowed on the condition of the declarant
making application to the proper officer of Customs seeking for transhipment of the goods imported and mentioning of the goods imported in the
manifest or the manifest report as the case may be for transhipment to any Customs station. For better appreciation, we deem it fit to extract the
Regulations 3 to 6 of 1995, hereunder.
Conditions governing transhipment.- Transhipment shall be allowed under these regulations on the conditions that - the declarant makes an
application to the proper officer of (a) customs seeking permission for transhipment of the goods imported; the goods imported are mentioned in
the import manifest or (b) the import report, as the case may be, as for transhipment to any customs station; such transhipment is by rail, a vessel,
an aircraft or a (c) motor vehicle or by a combination of two or more of these modes of transport:
Provided that if the goods imported are sought to be transhipped by a motor vehicle, such transhipment shall be made only on permission in writing
of the Commissioner of Customs; and such Commissioner while permitting such transhipment shall have regard to the following factors, namely:-
(i) the nature of the goods imported to be transhipped, (ii) the amount of revenue involved, and (iii) any other factor which the Commissioner of
Customs may deem irrelevant:
Provided further that the Commissioner of Customs shall, before refusing any such application for permission for transhipment of goods imported
by a motor vehicle, give a reasonable opportunity of being heard to the declarant:
the declarant, the transporter or, as the case may be, the (d) custodian executes a bond in such form with or without surety or security or with both
as the Commissioner of Customs may be specify for - completion of the transhipment of the goods imported to the (i) Customs station of
destination; or the transfer of the imported goods to another mode of (ii) transport during the course of their transhipment:
Provided that if the transhipment to the customs station of destination is by more than one mode of transport, the Commissioner of Customs may
accept a single bond for the transhipment by such different modes:
Provided further that the transfer from one mode of transport to another of the goods imported during the course of their transhipment made be
under the supervision of a proper officer of customs and at such places and subject to such conditions as may be specified by the Commissioner of
Customs at the customs station of import :
Provided also that the Commissioner of Customs may permit the execution of a general bond in such form and with such surety or security or with
both as that Commissioner may deem fit for the aforesaid purposes.
Terms of the bond to be executed. - The terms of the bond shall be that if the person executing the bond produces to the proper officer, within
one month or within such extended period as such officer may allow, a certificate issued by the proper officer at the customs station of transfer as
specified in the said bond or at the customs station of destination specified in the said bond and situated at or nearest to the place of destination
that the imported goods have been transferred or produced at the station as the case may be, the bond shall stand discharged; but otherwise an
amount equal to the value, or as the case may be, the market price of the imported goods in respect of which the said certificate is not produced
shall stand forfeited.
Payment of fees. - A fee of twenty rupees in respect of each application for transhipment of the goods imported shall be charged for all customs
station.
Imported goods transferred to be sealed. Before the goods imported are transhipped - (1) the proper officer shall -
(a) in the case of transhipment by rail, seal the containers with the Customs Department''s seal in the presence of an authorized representative of
the declarant, the transporter or, as the case may be, custodian;
(b) in the case of vehicle, place all small transhipment by an aircraft, a vessel or a motor packages containing the imported goods in durable bags
and seal the bags with the Customs Department''s seal in the presence of an authorized representative of the declarant, the transporter or, as the
case may be, custodian,
(c) in the case of a container which has been sealed by one time bottle seal by shipping lines or their agents and the Customs have been informed
of the serial number of such seal, such container shall not be required to be sealed by the Customs as required under clause (a) or clause (b) at the
gateway port prior to their dispatch to ICDs/CFSs/Ports by rail/motor vehicle/vessels.
The materials and (2) the bags required for sealing the containers or bags under sub-regulation (1) shall be provided by, and at the cost of the
declarant or the transporter or, as the case may be, the custodian.
On a reading of Section 54(3) of the Act together with the Regulations mentioned above, it is clear that the concern of the Officer of the Customs
House at the first point in the Indian territory is to verify whether the goods are imported by proper means and for that purpose, what is important
is the authenticity of the goods purchased at a place in foreign country containing all the details of the said purchase and the object is that those
goods are sent by proper authorization and are lawful. At that stage of loading for destination to a place in India, the rate of duty is not the concern
but the lawful transhipment from a recognised owner to a specified destination and the name of consignee. Whether the goods are scrap or
serviceable, as is in this case, as they attract different levies of customs duty, are the matters to be considered by proper officer and proper
authority. The question is as to who is the Authority to intercept, seize, detain and then adjudicate with regard to proper Customs levy and here
whether it is Madras or Bangalore. Whether the goods transhipped answer to description of scrap or service material, basing upon which the
Customs duty is leviable, or whether the appellant is entitled for exercising right of mutilation u/s 24 of the Act are not fit for consideration by this
Court at this juncture as it involves a fact-finding preceded by enquiry. But which Authority is entitled to enquire - Madras Customs or Bangalore
Customs? The argument of the respondents is that since the goods imported meant for transhipment do not answer to the description in the Bill of
Entry, Madras Customs being the first port where the goods arrive, is the Authority and not Bangalore Customs. We are not concerned with the
conduct of the appellant with regard to his previous deals. We are only concerned with the jurisdiction of the Madras Port in the instant case. If
Bangalore Customs House is not having jurisdiction to adjudicate with regard to proper Customs levy, then certainly Madras Port would be having
the jurisdiction. Even if both the Madras Customs House at Madras Port and Bangalore Customs House are having concurrent jurisdictions, then
also the assumption of jurisdiction by Madras Customs cannot be faulted with. But if the legal provision hints that only the place of destination
confers jurisdiction on the authorities, then Madras Port has got no jurisdiction to intervene in the matter. When question of jurisdiction arises for
consideration, alternative remedy is not a bar and that is settled law. The argument is that Section 54 of the Act has to be read with Section 111,
that clause (f) of Section 111 of the Act is violated and that is why Madras Port has got jurisdiction. The above clause reads thus, 111.
Confiscation of improperly imported goods, etc. - The following goods brought from a place outside India shall be liable to confiscation:-
(a) to (e) .....
(f) any dutiable or prohibited goods required to be mentioned under the regulations in an import manifest or import report, which are not so
mentioned;
There is not even a slightest hint that the first Customs point in Indian territory gets jurisdiction if this clause is attracted. This view of ours is further
strengthened by Section 55 of the Act, which reads,
Liability of duty on goods transited u/s 53 or transhipped u/s 54.- Where any goods are allowed to be transited u/s 53 or transhipped under
sub-section (3) of section 54 to any customs station, they shall, on their arrival at such station, be liable to duty and shall be entered in like manner
as goods are entered on the first importation thereof and the provisions of this Act and any rules and regulations shall, so far as may be, apply in
relation to such goods.
The net result is that if the goods are imported for transhipment, the Customs House at the destination point i.e. Bangalore in the instant case, has
got jurisdiction in view of Notification No. 14 of 2002 dated 7.3.2002 as under Sl. No.9, for whole of Karnataka, excluding the areas falling under
the jurisdiction of Commissioner of Customs, Mangalore, Commissioner of Customs, Bangalore, i.e. the third respondent is the Authority having
territorial jurisdiction and not the second respondent.
In the circumstances,
(a) the impugned proceedings are held to be illegal and without jurisdiction;
(b) the second respondent is directed to complete the transhipment of goods, whose ownership is claimed by the appellant, provided in the Bill of
Entry and to the destination, i.e. Customs House, Bangalore, by taking such bonds from the appellant as contemplated under Goods Imported
(Conditions of Transhipment) Regulations, 1995;
(c) on receipt of the goods claimed by the appellants, the third respondent shall be entitled to verify the true nature of the goods imported, levy
proper duty and to act in accordance with the legal provisions governing the situation; and
(d) as the goods are hauled up since about two years, time for compliance of this order is given by one week from the date of receipt of a copy of
this order.
The Writ Appeal is disposed of accordingly. Consequently, W.A.M.P. Nos.5818 and 5819 of 2003 is dismissed.