Dismissed

Marine Fins, 2/266 v. Union of India

Kerala HC18 Jun 2019RP/427/2019

Case brief

AI extract

What is this about?

Court dismissed the review petition regarding retained shark fin stock. It held that indefinite retention was unjustified as the product is perishable and the petitioner failed to indicate a time limit for utilizing it domestically using available technology. The court ordered destruction if clearance was not sought within three weeks.

What did the court decide?

The petitioner was given three weeks to seek clearance for permitted domestic use; otherwise, the shark fin stock must be destroyed.

Marine Fins, 2/266 Vs Union of India — Customs and Excise | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE THE CHIEF JUSTICE MR.HRISHIKESH ROY

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THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR

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TUESDAY, THE 18TH DAY OF JUNE 2019 / 28TH JYAISHTA, 1941

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RP.No.427 of 2019 IN WA. 924/2016

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AGAINST THE JUDGMENT DATED 26.03.2019 IN WA.NO.924/2016

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NAME AND ADDRESS OF THE REVIEW PETITIONER/APPELLANT:

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MARINE FINS, 2/266 CALVATHY, KOCHI, PIN 682 001 REPRESENTED BY ITS PROPREITRIX FATHIMA BEEVI T.A

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BY ADVS. SRI.M.A.ABDUL HAKHIM SRI.JOSEPH GEORGE (KANNAMPUZHA)

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NAME AND ADDRESS OF THE RESPONDENTS/RESPONDENTS:

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1 UNION OF INDIA, REPRESENTED BY SECRETARY, MINISTRY OF COMMERCE AND INDUSTRY, UDYOG BHAVAN, NEW DELHI PIN 110 001

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2 DIRECTOR GENERAL OF FOREIGN TRADE, DEPARTMENT OF COMMERCE, MINISTRY OF COMMERCE AND INDUSTRY, UDYOG BHAVAN, NEW DELHI, PIN 110 001.

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3 SECRETARY, MINISTRY OF ENVIRONMENT, FOREST AND CLIMATE CHANGE, UDYOG BHAVAN, NEW DELHI , PIN 110 001.

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4 THE COMMISSIONER OF CUSTOMS, CUSTOMS DEPARTMENT, KOCHI, PIN 682 018.

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BY ADVS.

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SRI.P.VIJAYAKUMAR, ASG OF INDIA SRI.SREELAL N. WARRIER, SC, CENTRAL BOARD OF EXCISE & CUSTOMS SRI.JAISHANKAR V.NAIR, CGC

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THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 18.06.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:

R.P.No.427/2019

O R D E R

Hrishikesh Roy, C.J.

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Heard Sri.M.A.Abdul Hakhim, the learned counsel appearing for the review petitioner. Also heard Sri.Jaishankar V. Nair, the learned Central Government Counsel, appearing for the respondents. The learned counsel Sri.Sreelal N. Warrier appears for the Customs Department.

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This Review Petition is filed in connection with the direction issued by the Court in paragraph 11 of the judgment dated 26.3.2019 in the W.A.No.924/2016. The Special Leave Petition filed against the said judgment was disposed by the Supreme Court on 29.4.2019. However, this petition is confined to the accumulated stock of Shark Fins. This Court allowed their utilization for permitted domestic use or otherwise the stock is to be destroyed. In the order dated 29.04.2019 disposing the SLP, the Supreme Court permitted the petitioner to urge his contention for continued possession of the stock of Shark Fin before this Court in a Recall Petition.

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The learned counsel for the petitioner would refer to the correspondence with the Central Institute of Fisheries Technology to submit that the unprocessed

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R.P.No.427/2019

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dried Shark Fins can be converted to high value raw material, for the collagen industry. The possible use of Shark Fins for other medical usage is also projected by Sri.Hakhim.

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From the submissions made as also the materials produced, while use of Shark Fins for certain permitted activity (other than as the ingredient in Shark Fin soup), may be possible, the technology for such usage is still in the process of development. Thus, there is an element of uncertainty as to the time frame within which, the petitioner can legally utilize the accumulated stock of Shark Fins in India.

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In the judgment under review, this Court allowed the petitioner to either use the accumulated stock for domestic use or to destroy it in an environmentally friendly manner, and the process was ordered to be undertaken within eight weeks from 26.3.2019.

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If the technology for high value product is currently not available in India, the indefinite retention of the perishable stock, may not be justified. In this context, the petitioner had voiced concern about the costs involved in keeping the accumulated stock of Shark Fins in India, without being permitted to export the same. Since export of Shark Fins itself is prohibited under the Government Policy,

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R.P.No.427/2019

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and the Policy has since been upheld by this Court as also by the Supreme Court, the indefinite retention of the accumulated stock with usual deterioration, may not in our view, be warranted.

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This case was adjourned last on 10.06.2019 at the request of the counsel for the review petitioner to enable him to receive instruction on the possible time frame within which, the accumulated stock of Shark Fins can be utilized for the permitted domestic use. Today, Mr.Hakhim again refers to the communication dated 13.05.2019 (Annexure-A4) and the communication dated 29.05.2019 (AnnexureA8), which indicate that the petitioner had corresponded with the Central Institute of Fisheries Technology and was informed that the Shark Fins can serve as a high value raw material for the collagen industry. The petitioner had requested the Central Institute of Fisheries Technology to provide the know how for processing the Shark Fins to procure collagen.

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But it is conceded by the petitioner that currently, the technology is not available with the petitioner for extraction of collagen from the dried Shark Fins. There is no indication when such technology can be secured in the near future. More importantly, the petitioner does not wish to utilise the accumulated stock for other permitted use within India such as fish meal etc., for the sole reason that

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R.P.No.427/2019

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they may not garner as much profit as the petitioner hopes to make.

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This Court cannot be unmindful of the fact that the Shark Fins were procured by the petitioner during the period when there was ban on export. Such ban imposed by the Indian Government has since been upheld by the Courts. The learned counsel for the petitioner however submits that the Shark Fins were procured with the hope that there will be a change of policy of the Government but it did not happen. Therefore, it is apparent that the product in question was accumulated at the risk and cost of the petitioner in the hope of change of governmental policy.

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While the petitioner is seeking a direction for indefinite retention of the Shark Fins without exploring the option of permitted use based on the technology currently available, it has to be borne in mind that the product itself is perishable. The cost of keeping the stock was also highlighted by the petitioner on the last occasion when this Court was considering the matter on 29.05.2018, while disposing of the W.A.No.924 of 2016. We also need to be conscious of the administrative costs that have to be incurred for ensuring that the accumulated stock is not utilised for clandestine export or any illegal use.

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R.P.No.427/2019

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For the aforesaid reasons and particularly because the petitioner has failed to indicate any time limit for utilizing the stock of Shark Fins, for permitted domestic use, we feel that indefinite retention cannot be allowed. Therefore the Review petition is dismissed. If the petitioner does not seek clearance of goods for permissible domestic use within three weeks from today, the goods shall be destroyed in an environmentally friendly manner under the supervision of the customs authorities immediately thereafter.

Sd/-

HRISHIKESH ROY

CHIEF JUSTICE

Sd/-

A.K.JAYASANKARAN NAMBIAR

JUDGE

mns

R.P.No.427/2019

APPENDIX

PETITIONER'S/S EXHIBITS:

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ANNEXURE A1	A PHOTOSTAT COPY OF THE ORDER OF THE HON'BLE SUPREME COURT DATED 29/4/2019 IN SLP (CIVIL) DIARY NO. 5911/2017 AND S.L.P NO. (CIVIL) 10161/2019
ANNEXURE A2	A PHOTOSTAT COPY OF THE APPLICATION DATED 1/4/2019 SUBMITTED BY THE PETITIONER TO THE DIRECTOR, CENTRAL INSTITUTE OF FISHERIES TECHNOLOGY
ANNEXURE A3	A PHOTOSTAT COPY OF THE COVERING LETTER DATED 6/4/2019 SUBMITTED BY THE PETITIONER TO THE DIRECTOR, CENTRAL INSTITUTE OF FISHERIES TECHNOLOGY
ANNEXURE A4	A PHOTOSTAT COPY OF THE REPORT DATED 13/5/2019 ISSUED BY CENTRAL INSTITUTE OF FISHERIES TECHNOLOGY TO THE PETITIONER.
ANNEXURE A5	A PHOTOSTAT COPY OF THE E-MAIL COMMUNICATION DATED 5/5/2019 FROM THE PETITIONER TO DR.K. M CHERIAN ALONG WITH THE TRAILING E-MAILS.
ANNEXURE A6	A PHOTOSTAT COPY OF THE E-MAIL COMMUNICATION DATED 9/5/2019 FROM M/S. COLOGENESIS HEALTH CARE PVT. LTD TO THE PETITIONER ALONG WITH THE TRAILING E- MAILS
ANNEXURE A7	A PHOTOSTAT COPY OF THE LETTER DATED 17/5/2019 ISSUED BY THE THE COMMISSIONER OF CUSTOMS, AIR CARGO COMPLEX, INTERNATIONAL AIR PORT, COCHIN- 683111 TO THE PETITIONER
ANNEXURE A8	A PHOTOSTAT COPY OF THE REQUEST SUBMITTED BY THE PETITIONER TO THE DIRECTOR, CENTRAL INSTITUTE OF FISHERIES TECHNOLOGY, W.ISLAND, COCHIN

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RESPONDENTS ANNEXURES:NIL

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//TRUE COPY//

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P.A TO JUDGE

Marine Fins, 2/266 v. Union of India

Case brief

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Marine Fins, 2/266 v. Union of India

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