2011 (4) TMI 200 - HC - Customs

Confiscation - Demurrage charges - Detention certificate - A mere reading of Section 45 shows that the imported goods would remain in the custody of the person approved by the Customs Commissioner until they are cleared for home consumption or are warehoused or are transshipped in accordance with the provisions of Chapter VIII - the Calcutta High Court also in the case of Donald & Macarthy (P) Ltd. vs. Union of India reported in 1997 (89) ELT 53 (Cal.) has held that the persons or the authority responsible for the delay in lifting the goods should be held responsible to pay the demurrage and port charges - since the petitioner is entitled to carry the goods without paying any demurrage charges for the period during which the goods were detained the respondent cannot call upon the petitioner to pay the charges towards detention and demurrage - Decided in the favour of the assessee

Summary

Issues: Petition seeking mandamus for detention certificate waiving demurrage charges; Delay in implementing CESTAT order; Entitlement to detention certificate; Liability for demurrage charges.

Analysis:
1. The petitioner sought a writ of mandamus to direct the Commissioner of Customs to issue a detention certificate waiving demurrage charges post-confiscation until release of goods. The cargo was detained for not meeting export norms, leading to a series of legal proceedings culminating in CESTAT setting aside the order and allowing the appeal.

2. The petitioner's grievance arose from the lack of response from the respondent post the CESTAT order, despite requests for a detention certificate. The petitioner contended that as per Customs Act, no demurrage charges are payable for the period between confiscation and release of goods if directed by customs authorities. The Apex Court's interpretation of Section 45 of the Customs Act supports the petitioner's claim for waiving demurrage charges.

3. Citing a similar case precedent from Calcutta High Court, it was argued that the delay in clearing goods was due to the non-issuance of the detention certificate. The judgment highlighted that responsible parties for such delays should bear demurrage and port charges, emphasizing the need for the respondent to issue the detention certificate to waive demurrage charges for the petitioner.

4. The Court, after considering the legal provisions and precedents, held that the petitioner was entitled to the detention certificate. The respondent was directed to issue the certificate, specifying the period of detention of goods, and to consider the petitioner's pending representation. The judgment emphasized that since the CESTAT had set aside the previous orders and no further appeal was filed, the petitioner should not be liable to pay demurrage charges for the detention period.

5. In conclusion, the writ petition was allowed, and the respondent was directed to issue the detention certificate within eight weeks, waiving demurrage charges for the period of detention. The judgment did not impose any costs on the parties involved.