CWP No.20328 of 2011 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.20328 of 2011 Date of Decision: 13.12.2011 M/s Raja Iron Store ..... Petitioner Versus Union of India and others ..... Respondents CORAM:- HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE G.S. SANDHAWALIA Present: Mr. Jagmohan Bansal, Advocate, for the petitioner. Mr. Kamal Sehgal, Advocate, for respondent No.2. HEMANT GUPTA, J. The petitioner has sought a writ of certiorari for quashing the Panchnama dated 29.09.2011 (Annexure P-10) and for issuance of a writ of mandamus directing the respondents to permit the clearance of goods lying at Container Freight Station (CFS), Ludhiana. The petitioner is said to be engaged in the import of melting scrap. It has imported seven containers of melting scrap and has filed Bill of Entry and is said to be ready to pay duty in respect of the goods contained in seven containers. Such containers have been seized by respondent No.2 inter alia for the reason that such goods are restricted and have been imported without licence. It is asserted by the petitioner that the officers of the respondent physically examined the contents of containers and Shri Anil Kumar Soni, Chartered Engineer submitted his report on 28.09.2011 that CWP No.20328 of 2011 -2- most of the cylinder bottles seems to be visually in serviceable condition subject to pressure recycling test, hydraulic test & ultrasonic test. It is also pointed out that some quantity of cylinder is rusty, damanged without any end-fittings and threaded adaptors are found damaged. Shri Varun Chandok another Chartered Engineer in its report dated 28.09.2011 has reported that consignment contains old and used cylinders of assorted sizes and that as per the report of Naval Kishore of M/s Krishna Gasses, the goods are not serviceable and have no commercial value except value of scrap. Since the goods were not being released which led to filing of the present petition. In reply to the petition, the reliance has been placed on report dated 29.09.2011 furnished by Sh. Anil Kumar Soni, Chartered Engineer that pressure recycling test, hydraulic test & ultrasonic testing of the said imported old & used air/oxygen/CO2/fire extinguisher cylinder was required to be done at gas refilling plants/laboratory, where facilities for such testing may be available, for their serviceability. It is pointed out that such goods have been seized on the reasonable belief that these cylinders were serviceable and could be re-used after minor fabrication work and also for the reason that Second Hand Goods are restricted for imports as per Para 2.17 of the Foreign Trade Policy, 2009-14. Reference is also made to the response of Controller of Explosives dated 20.10.2011 that import of cylinders is governed under Rule 3, 29, 30, 31 and 32 of the Gas Cylinder Rules, 2004 that in the absence of the compliance of the same, the cylinders may be condemned by cutting into pieces and disposing them as a scrap. In respect of testing of the imported gas cylinders for ascertaining their serviceability and deputing an officer for examination of the said imported CWP No.20328 of 2011 -3- cylinders was concerned, their organization was not in a position to render the said services. Learned counsel for the petitioner has argued that cylinders are not serviceable and has to be used as a scrap. He states that he will permit the mutilation of such cylinders at his cost and provide sufficient safeguards against accidental explosion of the same without prejudice to the rights of the Revenue to proceed with the adjudication process. He shall file the bonds for any duty which may be leviable in such adjudication process but he will furnish duty in respect of such goods as scrap before the process of mutilation. Though Mr. Kamal Sehgal, Advocate has vehemently opposed the release of the goods in the manner suggested by the petitioner but we find that no useful purpose would be served by keeping such goods in godown pending determination of their serviceability. The fact remains that petitioner has imported them as scrap. To support that in fact it is scrap, the petitioner has made a statement that he is ready to mutilate such cylinders at his cost in a safe environment so that the explosion of the cylinders do not cause any damage to the life and property. Therefore, we deem it appropriate to direct the respondents to release the goods in the following manner:- 1. The petitioner will deposit duty on the imported goods as a scrap with further bond and undertaking to pay such duty, penalty or interest as may be leviable on such goods if the goods are found to be other than scrap. 2. Petitioner will make arrangements for mutilation of the imported goods at his cost and in the manner which takes care of danger of explosion of the cylinders so as CWP No.20328 of 2011 -4- to protect the life and property of handlers under the supervision of the customs authorities. This order is without prejudice to the rights of the respondents to carry out the adjudication process in respect of goods imported in accordance with law. The respondents shall make the goods available within two weeks on deposit of the duty amount for the purpose of mutilation in the manner mentioned above. Disposed of. (HEMANT GUPTA) JUDGE (G.S. SANDHAWALIA) 13.12.2011 JUDGE manju