Professional Documents
Culture Documents
Trison SC
Trison SC
I.A.NO. OF 2005
IN
Versus
To,
1. That the Petitioner had filed a special leave petition against the
judgement and order dated 13 th August, 2004 passed by the Hon’ble High
Court of Delhi at New Delhi in CM No.9324 of 2004 in WP (C)
No.1001/2001.
(a) The Petitioners herein entered into a contract with M/s Al Taj Hiz
General Trading Est., P.O. Box No.51268, Dubai, U.A.E.
(hereinafter referred to as ‘the Seller’) on 20.2.1996 for the
purchase of Copper dross, copper cable scrap of approx. 7 Tones
and 3 Tones respectively. In accordance with the terms and
conditions of the said contract, the delivery of the goods was to be
made within 30 days from the date of the contract. The contract
also specified the price, the payment terms and the name of the
buyer’s Bankers.
(c) That the Petitioners submit that it would be relevant to state here
that the import of the Copper Dross/Scrap was freely permitted as
on O.G.L. item under the Export-Import Policy, 1992-97 upto
25.3.1996. However vide Notification dated 25.3.1996 the Central
Government in exercise of its powers under Section 5 of the
Foreign Trade 9Development & Regulation) Act, 1992 (No.22/1992)
read with para 3 of the Export Import Policy, 1992-97 amended the
Export & Import Policy 9Revised Edition March, 1996) and as per
the Annexure to the said Notification from 25.3.1996 onwards the
import of customs waste and scrap was deleted from the Open
General Licence but the said Notification was to operate
prospectively and all the firm commitments prior to 25.3.1996 were
not to be affected by the said Notification.
(d) That the Petitioners upon receiving the bill of lading, invoice and
other documents through heir Bankers on 9.4.1996 and made
necessary payment of the consignment through their Bankers. The
documents received from the Bank were duly handed over by the
Petitioners to their Clearing Agent sometime prior to 20.4.1996 for
taking necessary steps to clear the imported goods.
(e) That the Clearing Agent fulfilled all the formalities as per the
Custom Act and Rules and filed the Bill of Entry along with all the
necessary documents before concerned officer on 20.4.1996 for
inspecting the goods.
(f) The concerned Officer i.e. the appraiser inspected the goods on
30.4.1996 and after fully satisfying himself with regard to nature
and genuineness of the goods returned the documents for
necessary endorsement and clearance to Respondent No.3.
(g) That the Petitioners also prepared the Bank draft for the sum of
Rs.10,16,028/- on 2.5.1996 for payment of the Customs duty.
(k) That it will be relevant to state here that the sellers wrote a letter to
the Petitioner on 13.5.1996 clarifying the position regarding the
date of invoice and also, inter alia, stating that if there is problem in
clearing, the Petitioners should forward container to the sellers’
client in China or the container be returned to the seller itself.
Alongwith the letter the seller also annexed Certificate regarding
the container containing the receipt of the material from the seller.
(m) That the Petitioners received another letter dated 25.3.1996 from
the I.A.L. Container Lines, U.K. who had supplied the Container in
which the goods have been shipped. IN the said letter, the I.A.L.
containers stated that if the delivery of the goods is not taken as
per the letter, they will not permit further detention of their container
and will order de-shipping of the goods.
(n) The Petitioners on 27.6.1996 requested the Respondent No.3 to
release the consignment and/or expedite the matter as they are
suffering losses in the shape of demurrage and detention charges
per day.
(p) That the Petitioners feeling absolutely frustrated and helpless once
again sent a demand for justice to the respondent no.3 on
15.7.1996 and requested him to release the consignment even on
appropriate bank guarantee to avoid any further losses on account
of damages, detention etc. No reply to any of the representations of
the petitioners has been received from respondents uptil date and
the Petitioners’ clearance is being withheld by respondents herein
without any authority of law.
(r) The Petitioners left with no other alternative remedy filed a Writ
Petition being C.W.P.No.3210 of 1996. The said Writ Petition was
heard and after hearing the Hon’ble Court was pleased to dispose
of the Writ Petition on the very first date while directing the
Petitioner as follows:-
While on one hand Mr. Rajiv Dutta, Counsel for the petitioner
submits that for non action of the Customs Department for
sending the file to ICD, the demurrage charges are not being
accepted with the result that the goods are not being shifted
to private warehouse in terms of the order dated 18.10.1996
in spite of the fact that the Petitioner has contacted the
Officers of the Custom Department a number of times, on
the other hand Mr. K.C Mittal submit that goods are already
under shifting and must have been shifted by now. Let Mr.
Mittal make a positive statement on the next date of hearing
that goods have been shifted.
As the order dated 18th October, 1996 was not complied with by the
Respondents, the Petitioners filed CM No.8106 of 1996 under
Section 151 CPC seeking the following directions against the
Respondents:
“1. Direct Respondent No.3 to send the complete file to ICD at
Tughlakabad, Delhi forthwith;
“Learned Counsel for the Parties submit that the goods have
been shifted and demurrage charges have been paid by the
Petitioner.”
“Mr. Mittal prays for time to file reply to this application. Let it
be filed within two weeks. Rejoinder, if any, may be filed
within two weeks, thereafter.”
1997 when the following order was passed by this Hon’ble Court:
That after dealing with the aforesaid writ petition, the Hon’ble High
Court in the other connected writ petition which was filed prior to
the aforesaid writ petition, viz., WP No.3210 of 1996, was pleased
to pass the following order:
(ae) That the aforesaid Appeal came up for hearing before the Hon’ble
CEGAT wherein it was observed that under provisions of Customs
Act., an Appeal could be filed before the Commissioner of Customs
and that no Appeal was maintainable before the Tribunal and
accordingly the Petitioner were advised to withdraw the Appeal and
to file the same before the Hon’ble Commissionerate.
The true copy of the abovesaid order dated 3.1.2005 passed by this
Hon’ble Court in SLP (C) No.25761/2004 is marked and annexed herewith
as Annexure-A/1.
4. In the view to comply with the order dated 3.1.2005 passed by this
Hon’ble Court in SLP (C) No.25761/2004 the Petitioner sent the
representation to the respondent requesting him to calculate duty amount
as per the direction of this Hon’ble Court. Though the representation
dated 25.1.2005 was duly acknowledged by the respondent on 28.1.2005,
the respondent did not assess the amount of duty and interest thereof. A
true copy of the letter/representation dated 25.1.2005 is annexed hereto at
Annexure-A/2.
5. Since the respondent did not furnish the duty amount to the
petitioner, the Petitioner was again constraint to send another
representation dated 4/2/2005 to the respondent interalia requesting him
to assess the customs duly and interest expediently so that same could be
deposited. The in ordinate delay on the part of the respondent in
assessing the custom duty and interest is causing grave and irreparable
loss to the petitioner. The true copy of the letter/representation dated
4.2.2005 sent by the Applicant is marked and annexed herewith as
Annexure-A/3.
The cavalier attitude of the respondent is clear violation of the order
passed by this Hon’ble Court in SLP (C) No.25761/2004. The non
compliance of the order of this Hon’ble Court is only due to Respondents
inaction.
PRAYER
(b) Extend the time for deposit in terms of the order dated 3.1.2005.
(c) pass such other or further orders as this Hon’ble Court may deem
fit and proper in the facts and circumstances of the present case.
I.A.NO. OF 2005
IN
SPECIAL LEAVE PETITION (C) NO. 25761/2004
VERSUS
AFFIDAVIT
I, Zahoor Shah aged about 52 years son Late Md. Gulam Navi Shah,
Resident of H. No. 20, NRI Complex Madakari New Delhi , do hereby
solemnly affirm and state as under :
4 That all the documents marked and annexed to the Petition for
Direction are true copies of their respective originals.
DEPONENT
VERIFICATION:
Verified at New Delhi on this the th day of April, 2005 that the contents of
the above Affidavit are true and correct to the best of my knowledge and
belief and that nothing false has been stated therein or material
concealed therefrom.
DEPONENT
INDEX
S. PARTICULARS Page
No. No.
2. ANNEXURE-A/1
The true copy of the order dated 3.1.2005 passed by 18 – 19
this Hon’ble Court in SLP (C) No.25761/2004.
3. ANNEXURE-A/2
A true copy of the letter/representation dated 20
25.1.2005.
4. ANNEXURE-A/3
The true copy of the letter/representation dated 21
4.2.2005 sent by the Applicant.
Filed by:
(R. NEDUMARAN)
ADVOCATE FOR THE PETITIONERS
IN THE SUPREME COURT OF INDIA
I.A.NO. OF 2005
IN
SPECIAL LEAVE PETITION (C) NO. 25761/2004
VERSUS
AFFIDAVIT
I, Mangal Dhawan aged about ____ years son Late Shri Sohan Lal
Dhawan, Resident of F-19/27, Sector VIII, Rohini, Delhi – 110085, do
hereby solemnly affirm and state as under :
DEPONENT
VERIFICATION:
Verified at New Delhi on this the th day of April, 2005 that the contents of
the above Affidavit are true and correct to the best of my knowledge and
belief and that nothing false has been stated therein or material
concealed therefrom.
DEPONENT