NOBLE CLEAN FUELS LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) By this petition under Article 226 of the Constitution of India, the petitioner seeks the following substantive reliefs :

(2.) The facts of the case as appearing in the petition are that the petitioner is a Company incorporated under the laws of United Kingdom and are, inter alia, engaged in the business of trading in petroleum products. On 11.09.2009, the petitioner brought 34,272.066 MTs of Gas Oil (HSD) per vessel "MT Rainbow Start" and filed Cargo Declaration in Form-III, i.e., IGM No.14672 with the declaration that the said goods are transshipment cargo to be transshipped to any foreign port. Vide letter dated 11.9.2009, the petitioner requested to discharge the cargo for transshipment, which was granted by the proper officer. On 24.11.2009, the petitioner brought 5,100 MTs of Gas Oil (HSD) covered by Bill of Lading with the same endorsement and filed Cargo Declaration in Form-III, i.e., IGM No.14906 dated 1st December 2009 for discharge at Mundra along with the covering letter also dated 1.12.2009. On 3.12.2009, the petitioner was granted permission to discharge the cargo and since then the said goods were lying in the warehouse tanks within the customs notified area at Mundra. On 6.4.2010, M/s ACT Shipping Ltd., Customs Agent (CHA), on behalf of the petitioner, made a request for permission for transshipment of the said goods and discharge of the same at Fujirah. Transshipment permits No.20 and 21 came to be filed by the Customs House Agent on behalf of the petitioner on 2.4.2010 for shipment of the said goods out of India, for which the vessel had also arrived at Mundra. Vide letters dated 8.4.2010 and 9.4.2010 addressed to the Director General of Foreign Trade, the petitioner sought clarification regarding applicability of restriction of canalization and permissibility of import of the said goods for transshipment. Vide communication dated 15.4.2010, the DGFT clarified that the said goods are transshipment cargo and hence, the transshipment of the said goods should be allowed. On 16.4.2010, the petitioner requested the respondents to provisionally allow the cargo to be loaded to avoid vessel demurrage charges. On 26.4.2010, the respondents instead of permitting the shipment of the said goods to Fujirah, seized the same under panchnama. On 24.4.2010, the second respondent passed a provisional release order which was communicated to the petitioner vide letter dated 26.4.2010 whereby the second respondent directed the petitioner to execute a bond for full value of the said goods and furnish a bank guarantee for Rs.20 crores. On 30.4.2010, the petitioner once again represented to the respondents for immediate release of the said goods for shipment to Fujirah. Vide letter dated 11.5.2010, the petitioner requested for reduction of the amount of bank guarantee, and on 26.5.2010, the request was made to the Commissioner of Customs, Ahmedabad who was holding additional charge in absence of the second respondent for reduction of the bank guarantee amount through the advocate for the petitioner, but the request came to be turned down.

(3.) Vide show cause notice dated 21.5.2010, the petitioner was called upon to show cause as to why the goods brought through MT Rainbow Star at Mundra Port for transshipment received under Bill of Lading No.PP519/09 dated 5.9.2009 and Bill of Lading No.P4965 dated 24.11.2009, valued at Rs.1,08,49,39,322=74 (price at the time of import) and Rs.12,70,22,812=58 (present market price cum sale price), should not be confiscated under section 111(d) and section 111(f) of the Customs Act, 1962 (the Act), and as to why the penalty should not be imposed upon it under section 112 and section 114AA of the Act. Being aggrieved, the petitioner has moved the present petition seeking the reliefs noted hereinabove.