By TIOL News Service

KOLKATA, MAY 15, 2015: BETWEEN January and March 2013, the petitioner imported a large quantity of a substance alleged to be furnace oil (aka fuel oil) in containers from Singapore, Malaysia and Australia. These containers were unloaded and removed to a container freight station.

On the suspicion that the goods were hazardous and could not be imported into the country they were detained by the Customs.

For ascertaining that the goods were hazardous, samples were drawn and sent to the Customs House laboratory for testing. The test report with reference to a part of the goods stated that the sample did not satisfy the requirement of furnace oil/fuel oil as per IS 1593-1982. The Customs House laboratory recommended that the sample be sent to the Central Pollution Control Board, Kolkata, for testing. The Central Pollution Control Board, Kolkata refused to accept the samples on the ground that no chemical tests were conducted in their office. The Customs department then wrote to the IOCL enquiring as to whether these samples could be sent to them for testing. IOCL, Kolkata after some days e-mailed the department that the samples might be taken to Indian Oil's, Haldia refinery laboratory. This laboratory sent a note of regret that they did not have the facility to perform the tests in the way the Customs wanted them to do.

Vide letter dated 27th May 2013 the Customs department offered the petitioner the option to store the goods under Section 49 in a bonded warehouse.

Later, the petitioner was given the option of getting the goods tested at the National Test House but since they did not deposit the fees the samples were forwarded to the Central Revenue Control Laboratory, New Delhi.

On 11th December 2013 this agency reported that the sample did not meet the requirement for furnace oil/fuel oil and fell under the category of "hazardous waste oil".

Permission was granted to the Writ petitioner by the High Court on 18th December 2013, in a writ application filed, to re-export the goods. The court did not make any observation as to the liability to pay the rent or demurrage charges of the container freight station owners.

In obedience to the said order, the Commissioner of Customs (Port) passed an order on 17th February 2014 allowing re-export of the goods upon payment of fine of Rs.10 lakhs in terms of Customs Circular 100/2003 read with rule 17 of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008.

By that time, unpaid rent or demurrage charges kept on accumulating and they became substantial in nature so much so that these charges were more than the value of the goods.

So, the petitioner is again before the High Court praying that the demurrage charges should be borne and paid by the Customs department as the goods were detained for a prolonged period for their fault.

The High Court meticulously elucidated the facts and observed -

++ What actually the writ petitioner seeks is damages in tort from the customs for wrongful detention of their goods. To establish their claim the petitioner had to establish misfeasance in public office by the customs officials which resulted in this loss to him. Now, it has to be seen, to what extent the writ petitioner has been able to establish this fault.

++ Whatever, may have been the time consumed, on 11th December, 2013 the Central Revenue Control Laboratory of the Government of India had come to a clear cut finding that the sample which was sent to them for testing did not meet the requirement of furnace oil/fuel oil and that the goods could be classified as hazardous.

++ Every importer, every trader and every manufacturer owes this duty to the nation of not bringing from outside, to this country, goods which are hazardous. Or in other words, substances which are injurious to human life. This report is un-contradicted. Although, it is contended on behalf of the writ petitioner that the exporter's document certified that the goods were not hazardous, he has been unable to bring any report from any test house or agency in India to certify that the goods are non-hazardous.

++ It also appears from the records that this kind of hazardous goods are rarely brought into this country. The routine testing centres like the ones available with the customs or Indian Oil Corporation, Haldia do not even have the facilities to test such goods. The testing department of the customs expressed doubt whether the goods were non-hazardous, after having declared that they did not fit into the description of furnace oil or fuel oil. The Central Pollution Control Board refused to receive the sample on the ground that it did not have the testing facility. Ultimately, the Central Revenue Control Laboratory tested the goods and arrived at the finding that they were hazardous.

++ Constant efforts had been made by the customs to get the goods properly tested but they were faced with the obstacle that there were no adequate testing centres for them.

++ First, the petitioner did not respond to the letter of the customs to store the goods under Section 49 of the Customs Act, 1962. Secondly, he did not even deposit the charges of the National Test House which could have tested the goods in Kolkata. Having not received the fees for testing such goods in this laboratory, they had to be sent to New Delhi to be tested by the Central Revenue Control Laboratory. Thirdly, the petitioner did not offer the services of another testing centre to test the goods so as to rule out that the goods were hazardous.

++ When the writ petitioner found that the imported goods were not being cleared for home consumption by the Indian authorities, he should have immediately taken steps to re-export the same under Rule 17(2) of the Hazardous Waste (Management, Handling and Transboundary Movement) Rules, 2008. He took no decision to this effect before the hearing of the first writ.

++ I tend to form an opinion that the petitioner had a substantial contribution to make towards the delay.

++ The delay that was made by the Indian authorities was due to lack of testing centres in our country to test this kind of an unusual import of hazardous materials.

++ Law must be take its own course for the petitioner.

++ The court cannot and should not come to any final finding regarding fault or the nature of the goods. So, on appraisal of the facts, prima facie the writ petitioner is not entitled to any remedy.

++ Decisions cited by the petitioner Akbar Badruddin Jiwani vs. Collector of Customs 2002-TIOL-267-SC-CUS etc. where clear fault on the part of the customs or innocence on the part of the petitioner was established, have no application in this case.

++ The right of the petitioner to establish the fault of the Customs in a properly constituted civil proceeding is kept open.

The Writ application was disposed of.

(See 2015-TIOL-1256-HC-KOL-CUS)