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2018 DIGILAW 690 (KER)

Anil Sebastian Pulickel v. Union of India

2018-08-31

A.K.JAYASANKARAN NAMBIAR, HRISHIKESH ROY

body2018
ORDER: A. K. Jayasankaran Nambiar, J. 1. In both these writ petitions, which are in the nature of Public Interest Litigations, the common issue raised is with regard to the availability of the benefit of the Customs Duty Exemption Notification No. 59/2018- Customs dated 21/08/2018 to goods imported into the State for flood relief and rehabilitation operations. The said notification, which is issued in public interest, exempts all goods falling under the First Schedule to the Customs Tariff Act, 1975, when imported into India and intended for donation for the relief and rehabilitation of the people affected by the recent floods in the State of Kerala, from the whole of the duty of customs leviable thereon under the First Schedule to the Customs Tariff Act and the whole of the integrated tax leviable thereon under sub-section (7) of Section 3 of the Customs Tariff Act, subject to the following conditions, namely: (i) that it is certified by the importer on the relevant clearance documents that the goods are intended to be donated for the relief and rehabilitation of the people affected by the floods in the said State free of cost; (ii) that the said imported goods are sent to the Central Government, the Government of Kerala; or as the case may be, the relief agencies of the Central Government, the Government of Kerala including the relief agencies duly approved by the Central Government or the Government of Kerala for the purposes; and (iii) that the importer produces before the Deputy Commissioner or the Assistant Commissioner of Customs, as the case may be, within six months from the date of importation of the said goods or within such extended period as the said officer may allow, a certificate from the District Magistrate of the affected area in the State of Kerala that the said goods have been donated for use for the aforesaid purpose. The concern of the petitioners is essentially with regard to the conditions (ii) and (iii), since condition (i) only requires them to issue a self declaration that the goods imported by them are intended to be donated free of cost for the relief and rehabilitation of the people affected by the floods in the State and the petitioners, who claim to be relief agencies, admittedly do not have any difficulty as regards compliance with the said condition. 2. 2. As regards the condition (ii), it is stated that for the imported goods to get the benefit of the customs duty exemption, they have to be consigned either to the Central Government, the Government of Kerala or any relief agencies of the Central Government or the Government of Kerala or relief agencies duly approved by the Central Government or the Government of Kerala for the purpose. It is pointed out that the petitioners herein, and many other like relief agencies operating in the private domain, including NGOs, are not approved either by the Central Government or the State Government in terms of clause (ii) of the notification. It is further stated that no mechanism/procedure has been put in place, either by the Central Government or by the State Government, for approving particular relief agencies, who intend to import goods for relief and rehabilitation purposes. Although the State Government is seen to have authorised the District Collectors of Trivandrum, Ernakulam and Calicut Districts to take necessary action for the purposes of the customs notification aforementioned, the apprehension of the petitioners is essentially that, the authorised District Collectors would insist on a delivery of the imported goods to them for the purposes of further distribution to the flood affected persons in the State. This, according to the petitioners, would not take into account the wishes of the importers or the consignor/donors, who may have imported/exported the goods for the purposes of distribution at particular locations/relief centres. It is also pointed out that condition (iii) in the notification contemplates the production of a certificate from the District Magistrate of the affected area in the State of Kerala, stating that the goods have been donated for the use for the aforesaid purposes. According to the petitioners, the said condition (iii) also cannot be complied with, if the relief materials imported are handed over to the District Collectors at the place of import as they would, thereafter, have no control over the distribution of the goods. 3. We have heard the learned counsel Sri. Santhosh Mathew and Sri. P. A. Mohammed Shah appearing for the petitioners in these writ petitions. We have also heard the learned Advocate General appearing for the State Government, as also the learned Assistant Solicitor General appearing for the Union of India and the learned counsel appearing for the Customs Authorities. 4. 3. We have heard the learned counsel Sri. Santhosh Mathew and Sri. P. A. Mohammed Shah appearing for the petitioners in these writ petitions. We have also heard the learned Advocate General appearing for the State Government, as also the learned Assistant Solicitor General appearing for the Union of India and the learned counsel appearing for the Customs Authorities. 4. The learned Advocate General would submit that, necessary communications have already been issued to the District Collectors in the various Districts in the State, to assist in the import of materials by various relief agencies, and such instructions require the importers concerned to hand over the imported relief material to the District Collector concerned, for the purposes of further distribution of the goods by using the State machinery. It is stated that a certificate approving particular importers, as approved relief agencies for the purposes of the notification, can be given in respect of each consignment imported, on the importer concerned undertaking to the State Government that the imported material would be immediately handed over to the State Government for the purposes of further distribution using the State machinery. It is clarified that, while obtaining the undertaking from importer concerned, due weight age will be given to the wishes of the importer as regards the ultimate destination of the goods imported. 5. On a consideration of the submission made across the Bar, and taking note of the urgency of the situation where consignments of imported goods are stated to be lying uncleared at the various ports of entry into the State of Kerala of Kerala, we deem it necessary to issue the following direction in connection with the procedure to be adopted for the purposes of enabling the importers of flood relief materials to obtain the benefit of the Customs Duty Exemption Notificat: No. 59/2018/CUS dated 21/08/2018: (I) The Central/State Government shall immediately notify the authority authorities concerned, who shall be authorised to grant approval certificates in favour of the importers of relief materials through the various ports of entry in the State of Kerala. (II) The authority/authorities notified by the Central/State Government shall, on being approached by an importer with a request for certificate as an approved relief agency for the purposes of the notification dated 21/08/2018, promptly consider the said application and accord approval on the importer concerned satisfying the conditions stipulated for the grant of approval. (II) The authority/authorities notified by the Central/State Government shall, on being approached by an importer with a request for certificate as an approved relief agency for the purposes of the notification dated 21/08/2018, promptly consider the said application and accord approval on the importer concerned satisfying the conditions stipulated for the grant of approval. (III) In the case of those applications that are received by the state Government, taking note of the submission of the learned Advocate General, it is made clear that on the importer concerned undertaking of entrust the imported relief material to the State Government, immediate after its clearance through the customs station, and indicating its preferred choice of destination of the imported goods, within the State of Kerala the State Government shall immediately issue the necessary certificate approving the importer concerned, as an approved relief agency for the consignment in question, so as to enable the latter to obtain the benefit of the customs notification aforementioned in respect of the said consideration In the distribution steps that are subsequently undertaken in respect of the said relief materials, the State Government shall permit the participation of the relief agency concerned, and also give due weightage to its choice of destination of the imported goods. (IV) The certificate of approval granted by the State Government in terms of clause (III) above, together with the undertaking furnished by the importer of the State Government, shall be treated as sufficient compliance by the importer, of conditions (ii) and (iii) of the notification, for the purposes of finalising the customs duty assessment in relation to the imported goods. Taking note of the urgency of the situation, we make it clear the certificates/approvals/clearances by the State and Central Authorities shall not be unduly delayed and shall, at any rate, be issued within three days from the date of presentation of the relevant documents by the importer concerned. (V) We might also indicate that it would be prudent for the Stare/central Government to simultaneously give adequate publicity to the approvals granted to the various relief agencies for the purposes of the customs notification referred above, as also to the details of relief material that are found necessary in various districts in the State. (V) We might also indicate that it would be prudent for the Stare/central Government to simultaneously give adequate publicity to the approvals granted to the various relief agencies for the purposes of the customs notification referred above, as also to the details of relief material that are found necessary in various districts in the State. The former would help prospective donors identify relief agencies that have received the approval of the State/Central Government, while the latter would ensure that an ensure that an equitable distribution of the relief materials coming into the State, is effected among the flood victims.