Shreeji Transport Services (P) Ltd. v. Commissioner of Excise, Thiruvananthapuram & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** **WEDNESDAY, THE 14TH DAY OF NOVEMBER 2012/23RD KARTHIKA 1934** ## **WP(C).No. 10983 of 2012 (W) ---------------------------** ## **PETITIONER(S):** ## **-------------** **SHREEJI TRANSPORT SERVICES (P), AGED 36 YEARS NATIONAL TOWER, IST FLOOR, OPP.AIR CARGO COMPLEX NEAR COCHIN INTERNATIONAL AIRPORT, NEDUMPASSERY COCHIN, REPRESENTED BY ITS REGIONAL MANAGER RENJITH KRISHNAN.** **BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR** **RESPONDENT(S):** - **--------------** **1. THE COMMISSIONER OF EXCISE THIRUVANANTHAPURAM-695 001.** **2. THE DEPUTY COMMISSIONER OF EXCISE THIRUVANANTHAPURAM ZONE, EAST FORT THIRUVANANTHAPURAM-695 002.** **3. ASSISTANT COMMISSIONER OF EXCISE THIRUVANANTHAPURAM-695 001.** **4. ASSISTANT COMMISSIONER OF CUSTOMS TRANSSHIPMENT SECTION, AIR CARGO COMPLEX CHENNAI-600 027.** **5. ASSISTANT COMMISSIONER OF CUSTOMS AIR CARGO COMPLEX, THIRUVANANTHAPURAM-695 003.** **6. THE EXCISE INSPECTOR EXCISE RANGE OFFICE, AMARAVILA, NEYYATTINKARA THIRUVANANTHAPURAM-695 032.** **BY ADV. SRI.TOJAN J.VATHIKULAM,SC,C.B. EXCISE BY ADV. GOVERNMENT PLEADER** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 14-11-2012 ALONG WITH WP(C).NO.25547/2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WP(C).No. 10983 of 2012 (W) ---------------------------** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS:-** **EXHIBIT P1: TRUE COPY OF THE TRANSSHIPMENT BOND EXECUTED BY THE PETITIONER.** **EXHIBIT P2: TRUE COPY OF THE CIRCULAR NO.69/99-CUS DATED 6-10-1999. EXHIBIT P3: TRUE COPY OF THE LETTER MISC.NO.30/2002-T/S.DATED 24-4-2010 ISSUED BY THE ASSISTANT COMMISSIONER OF CUSTOMS, CHENNAI TO THE COMPANY. EXHIBIT P4: TRUE COPY OF THE LETTER NO.BT 317/2012 OF THE PETITIONER.** **EXHIBIT P5: TRUE COPY OF THE LETTER NO.BT 318/2012 OF THE PETITIONER.** **EXHIBIT P6: TRUE COPY OF THE AIRWAY BILL NO.589-23050020 IN FAVOUR OF JET AIRWAYS INDIA LIMITED.** **EXHIBIT P7: TRUE COPY OF THE IMPORT CHECK MANIFEST IN RESPECT OF THE ARRIVAL OF FLIGHT NO.9W 225 ON 6-4-2012. EXHIBIT P8: TRUE COPY OF THE LETTER DATED 19-4-2012 OF THE R4 ADDRESSED TO THE R5.** **EXHIBIT P9: TRUE COPY OF THE APPLICATION DATED 21-4-2012 SUBMITTED BY THE PETITIONER BEFORE THE R2.** **EXHIBIT P10: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE R2.** **EXHIBIT P11: TRUE COPY OF LETTER NO.S.MISC.1/2009-T/S(ACC) DATED 24-4-2012 OF THE R4.** **EXHIBIT P12: TRUE COPY OF REPORT DATED 21-4-2012 SUBMITTED BY THE R6 BEFORE THE JFCM-II, NEYYATTINKARA. EXHIBIT P13: TRUE COPY OF MAHAZAR IN CRIME NO.36/2012.** **EXHIBIT P14: TRUE COPY OF CRIME OCCURRENCE REPORT IN CRIME NO.36/2012.** **EXHIBIT P15: TRUE COPY OF THE SEALED COVERS CONTAINING EXHIBITS P4,P5,P7 AND P8 DOCUMENTS GIVEN BY R4 FOR HANDING OVER TO THE R5, TO BOTH R2 AND 6.** **( CONTD....... )** **-: 2 :-** **EXHIBIT P16: TRUE COPY OF THE ORDER DATED 15.5.2012 OF THE VACATION JUDGE, THIRUVANANTHAPURAM IN CRL.M.C. NO.1031/2012.** **RESPONDENTS' EXHIBITS:-** **EXHIBIT R4(A): TRUE COPY OF BRIEF ON THE TRANSSHIPMENT PROCEDURES LAID DOWN BY THE CENTRAL BOARD OF EXCISE & CUSTOMS.** **( TRUE COPY )** **PA TO JUDGE.** _**Kvs/-**_ **“C.R.”** ## **K.SURENDRA MOHAN, J.** = = = = = = = = = = = = = = = = = WP(C).Nos.10983 & 25547 of 2012. = = = = = = = = = = = = = = = = = Dated this the 14[th] November, 2012. ## **J U D G M E N T** The subject matter of these two writ petitions are the same and therefore, they are considered and disposed of together. WP(C).No.10983/2012 is treated as the leading case. The parties as well as the documents produced are referred to in the order in which they are described in the said Writ Petition. 2. The petitioner is a Private Limited Company represented by its Regional Manager. The petitioner had obtained licence for transporting Imported Cargo from one Airport to another as per the terms of Ext.P1 agreement entered into with the President of India. As per the terms of Ext.P1 agreement, the petitioner is entrusted with the work of transporting Imported Cargo in containers/trucks **WP(C).Nos.10983 & 25547/2012.** 2 between one Airport to another Airport. Ext.P2 Circular issued by the Government of India prescribes the formalities for the movement of such Imported Cargo. The goods are moved under the 'Bonded Trucking Facility' from the Airports. As per Ext.P2, such movement is to be governed by Chapter VIII of the Customs Act, 1962 and the Goods Imported (Conditions of Transshipment) Regulations, 1995 (hereinafter referred to as 'the Regulations' for short). As per the conditions, the custodian has to submit a list of the trucks to be used for the movement of each transshipment of cargo together with the registration numbers thereof and the trucks so deployed for transportation should make a provision for affixing Customs 'Bottle Seals' on those trucks. After loading the goods, the Customs Officer should seal the container/truck with the Customs Bottle Seal and make the necessary endorsements as stipulated by the Regulations. The original copy would be forwarded to the Import Freight Officer of Customs at **WP(C).Nos.10983 & 25547/2012.** 3 the destination point and another copy would be send along with the truck to the said Officer. At the destination, the said Officer of the Customs will check the Customs Bottle Seals and description of packages as per the Transshipment Permit to make sure that they were intact. Therefore, it is contended that there are proper procedures prescribed for the purpose of ensuring that the goods are not tampered with in any manner. The permission for the petitioner to engage in Bonded Trucking operations has been renewed for a period of three years, as evidenced by Ext.P3. The same is valid upto 17.4.2013. 3. In the above circumstances, a consignment of nine boxes of liquor bottles weighing 1095 Kgs. was transported by the Company from the Air Cargo Complex, Chennai to the Air Cargo Complex, Thiruvanantharam. According to the petitioner, the transport was authorised by proper documents, Exts.P4, P5, P6 and P7. The consignment was transported in a Customs Bonded Truck ## **WP(C).Nos.10983 & 25547/2012.** 4 bearing registration No.TN-05-AM 2547 under Transshipment Permit No.317/12 & 318/12 dated 19.4.2012. The consignments were valued at Rs.10,94,000/in the name of Jet Airways (India) Limited, Thiruvananthapuram. All the other necessary formalities for such transport as per the Customs Act, 1962 also had been complied with and the consignment was transported accompanied by all necessary documents. 4. On 21.4.2012, the truck of the petitioner was intercepted at the Amaravila Check Post and was detained by the State Excise Officials. Though all the documents were produced before the officials, the truck as well as the consignments were taken into custody. The seals affixed by the Customs Officials were broke open and samples of the liquor that was being transported were taken. A crime was registered as Crime No.36/12 under Section 55(a) and 67 B of the Abkari Act. The Driver of the petitioner was taken into custody. It was only after 21 days of detention that he 5 ## **WP(C).Nos.10983 & 25547/2012.** was able to obtain bail. 5. Though the petitioner had sought for interim custody of the goods, he was not granted the same. As per Ext.P11 the Assistant Commissioner of Customs, Chennai wrote to the Deputy Commissioner of Excise, Thiruvananthapuram apprising him of the real state of affairs and requesting him for the release of the cargo to the petitioner. However, there was no response to Ext.P11. Therefore, the petitioner has filed this writ petition seeking appropriate orders in the matter. 6. WP(C).No.25547/2012 is filed by the Driver of the vehicle seeking similar reliefs. In WP(C).No.10983/2012, as per an interim order dated 11.6.2012 the consignment of liquor that was seized, was released to the petitioner after a Bank guarantee for the bond value of Rs.10,94,000/- was furnished. 7. According to the learned counsel, Sri.Pirappancode V.S.Sudheer, who appears for the petitioner, the action of respondents 1, 2, 3 and 6 is 6 ## **WP(C).Nos.10983 & 25547/2012.** arbitrary, unsustainable and liable to be set aside by this Court. According to the counsel, the goods were transported under the Bonded Trucks facility, with the entire consignment supported by proper documents issued by the Customs officials. The goods were transported in accordance with the provisions of Sec.67 of the Customs Act, 1962. Such movement of liquor, according to the counsel, is not subject to the provisions of the Abkari Act or Rules made thereunder. No transit permit as required by the State Abkari Act or the Rules is necessary for movement of liquor under the Bonded Truck facility. The counsel therefore seeks the issue of appropriate orders quashing the entire proceedings and awarding costs. 8. A counter-affidavit has been filed on behalf of respondents 4 and 5 supporting the contentions of the petitioner. According to the counter-affidavit also, what was transported by the petitioner is 'Bonded Cargo'. Such movement of goods from one Customs Warehouse to **WP(C).Nos.10983 & 25547/2012.** 7 another Bonded Customs Warehouse is permitted by the Customs Act, it is stated. Since what was transported was Bonded Cargo subject to the provisions of Customs Act, it is pointed out that the State Excise Department has no authority to interfere with such transport. The petitioner had the necessary transshipment permit and other supporting documents. Ext.R4(A), a brief of the transshipment procedures is also produced. 9. A statement has been filed by the sixth respondent on behalf of the second respondent also. The main contention in the statement is that for the transshipment of liquor even if it is from one Customs area of an International Airport to another similar Customs area, necessary permit under the Kerala Liquor Transit Rules, 1975 is necessary. Since the consignment in the present case was transported without any such permit, the same was seized. The vehicle as well as the goods have been confiscated since they were involved in an Abkari office. **WP(C).Nos.10983 & 25547/2012.** 8 10. I have heard Adv.Pirappancode V.S.Sudheer for the petitioner, Adv.Tojan J.Vathikulam for respondents 4 and 5 and the learned Govt.Pleader who represents respondents 1, 2, 3 and 6. I have also considered the rival contentions advanced by the counsel anxiously. 11. The only contention put forward in justification of the impugned action is that it was necessary for the petitioner to have obtained a permit under the Kerala Liquor Transit Rules, 1975 before transporting the goods. Since the Foreign Made Foreign Liquor was transported without a transport permit, an offence under Section 55(a) of the Abkari Act was made out. 12. Section 57 of the Customs Act, 1962 ('Customs Act' for short) permits the Assistant Commissioner of Customs or Deputy Commissioner of Customs to appoint public warehouses wherein dutiable goods may be deposited. As per Sec.58 of the Customs Act, the Assistant Commissioner of Customs or the Deputy Commissioner of **WP(C).Nos.10983 & 25547/2012.** 9 Customs is empowered to licence private warehouses wherein dutiable goods imported by or on behalf of the licensee may be deposited. The deposit contemplated by Sec.58 is subject to the execution of a warehousing bond under Section 59 of the Customs Act. The goods so deposited are subject to the control of the proper officer under Sec.62. The owner of the goods so deposited can deal with the said goods only with the sanction of the proper officer and on payment of the requisite fees. Sec.67 permits removal of goods from one warehouse to another. The goods deposited in such warehouse are permitted to be released only on payment of the Customs duty. In the scheme envisaged by the above provisions of law, the imported goods remain in the custody and subject to the control of the Customs Officials until the duty is paid under Sec.68 of the Customs Act. Sec.67 contemplates the removal of goods from one warehouse to another before the goods are actually released for consumption after payment **WP(C).Nos.10983 & 25547/2012.** 10 of the duty. Sec.67 of the Customs Act reads as follows: “67. **Removal of goods from one warehouse to another** :- The owner of any warehoused goods may, with the permission of the proper officer, remove them from one warehouse to another, subject to such conditions as may be prescribed for the due arrival of the warehoused goods at the warehouse to which removal is permitted.” Therefore, the removal of goods from one warehouse to another that is stipulated by Sec.67 is while the goods are transported under bond. Such goods can be considered to have been brought into the country only after payment of the customs duty as already noticed above. 13. Rule 3 of the Liquor Transit Rule, 1975 relied on by respondents 2 and 6, reads as follows: "3. **Permit of transit of liquor:** - No liquor shall be allowed to be moved from one place in a State to another place in that State or to any other State through the territory of the State of Kerala except under a permit issued by the Assistant Excise Commissioner of the Division through whose jurisdiction it is proposed to be moved: Provided that when liquor has to be moved through more than one Excise **WP(C).Nos.10983 & 25547/2012.** 11 Division, the permit shall be issued by the Deputy Commissioner of Excise and when liquor has to be moved through more than one Excise Zone by the Excise Commissioner.” A perusal of the above provision shows that the same is applicable to the movement of liquor from 'one place in a State' to another place in that State. As already noticed above, the goods that are deposited in a Bonded warehouse have not come into the country or the State. The goods can be permitted to be released for consumption only on payment of duty under Sec.68 of the Customs Act. The said eventuality has not taken place in respect of the goods that are remaining deposited in bonded warehouses. Such goods do not come within the scope of Rule 3 extracted above, for the simple reason that they are not liquor being transported from one place in the State to another. In other words, the liquor in a bonded warehouse is not liquor that has come into the territory of our country. They can be said to have been imported into the country only after they are **WP(C).Nos.10983 & 25547/2012.** 12 cleared, by paying the Customs Duty payable on them. By no stretch of imagination, can it be said that the Excise Officials have any jurisdiction over liquor that has not been imported into the country. 14. The transport of goods from one bonded warehouse to another bonded warehouse is done under the proper control of Customs officials. In the present case, the transport of liquor was effected under proper documents as evident from paragraph 2 of the statement filed by the sixth respondent. The list of documents stated to have been seized from the Driver of the vehicle includes all the necessary official documents issued by the Customs authorities in compliance with Sec.67 of the Customs Act as well as the Goods Imported (Conditions of Transshipment) Regulations, 1995. The State Excise authorities therefore had no authority whatsoever to seize the said consignment and to register a case as done in the present case by Exts.P12 and P14. **WP(C).Nos.10983 & 25547/2012.** 13 15. I am supported in the above view by the decision in **Assistant Commissioner of Customs v. State of Kerala and others** (2010(4) KHC 793), where a Single Bench of this Court had occasion to deal with a similar situation. M.Sasidharan Nambiar J, has concluded the issue in the following words in paragraph 6 of the said judgment, which reads thus: “The foreign made foreign liquor seized in this case were all imported to India. Annexure 1 to 15 establish that as provided under the Customs Act, they were originally deposited in Customs Bonded Warehouse, New Delhi. As provided under Section 67, the foreign made foreign liquor so deposited at the Bonded Warehouse, Delhi are being transported, to be deposited at CWC Warehouse, W.Island, Kochi. The Customs officials are entitled to transfer the foreign liquor so deposited in one Bonded Warehouse to another Bonded Warehouse. Excise Officials are not entitled to seize such foreign liquor, while it is in the custody of the Customs Officials either in the Bonded Warehouse or while transferring from one Bonded Warehouse to another Bonded Warehouse.” 16. In view of the above, the petitioner herein is 14 ## **WP(C).Nos.10983 & 25547/2012.** entitled to succeed. These writ petitions are accordingly allowed as follows: - (i) Exts.P12 and P14 are quashed. - (ii) Respondents 1, 2, 3 and 6 are directed to release the vehicle bearing registration No.TN-05-AM 2547 to the petitioner forthwith. - (iii) The Bank guarantee furnished by the petitioner as per interim order dated 11.6.2012 shall be discharged for payment to the petitioner. - (iv) The claim of the petitioner for compensation, is left open. **K.SURENDRA MOHAN,** (Judge) **Kvs/-**