2011 (6) TMI 584 - HC - Customs

Return on containers - Ground rent / Demurrages and/or port charges for any period beyond 75 days from the date of landing - Two containers were brought by the petitioners stuffed with Beetle nuts and those were landed at Haldia Dock Complex - consignee of the imported cargo neither turned up to take delivery of the imported cargo nor abandoned the cargo goods sold in auction - Held that - in the case of Industrial Cable (I) Pvt. Ltd. (1989 (8) TMI 88 - BOMBAY HIGH COURT) Port Trust authorities have independent right to sell the property under the Major Port Trust Act and the permission of the Customs department is not required for sale of those cargoes by the Port authority as the provision relating to sale of cargo under the Customs Act is different from that of the provisions contained in the Major Port Trust Act. Both the aforesaid Acts operate in their respective fields and one is not dependent on the other. Therefore, it is difficult to accept that the Port Trust authorities could not have sold those cargos in the absence of the permission from the Customs authorities under Section 48 of the Customs Act. Port Trust authorities were not justified in claiming demurrages and/or port charges for any period beyond 75 days from the date of landing. petitioners are, thus, directed to pay demurrage charges for 75 days from the date of landing of those containers in the Port area. Port Trust authorities are thus directed to return the containers to the petitioner. writ petition is, thus, disposed of.

Issues Involved:
1. Legality of the Port Trust authority's demand for dock stayal charges.
2. Port Trust authorities' duty to sell unclaimed cargo under the Major Port Trust Act.
3. Applicability of Customs Act provisions to containers.
4. Responsibility for delays in disstuffing and auctioning the cargo.
5. Liability of the petitioners for ground rent and port charges beyond the statutory period.

Detailed Analysis:

1. Legality of the Port Trust authority's demand for dock stayal charges:
The petitioners challenged the demand for Rs. 2,61,681/- towards dock stayal charges for the period the containers stayed in the port area. The court concluded that the Port Trust authorities were not justified in claiming demurrages and/or port charges for any period beyond 75 days from the date of landing. The impugned demand was quashed, and the Port Trust authorities were directed to raise a fresh bill for 75 days, which the petitioners were required to pay.

2. Port Trust authorities' duty to sell unclaimed cargo under the Major Port Trust Act:
Sections 61 and 62 of the Major Port Trust Act, 1963, authorize the Port Trust authorities to sell goods under certain conditions. The court noted that the Port Trust authorities failed to perform their statutory duty to sell the cargo within a reasonable time beyond 75 days. The court emphasized that the Port Trust authorities were required to act within 75 days as per the Tariff Authority for Major Ports (TAMP) orders dated 19th July 2000 and 13th September 2005, which provided a clear timeline for selling unclaimed cargo.

3. Applicability of Customs Act provisions to containers:
The court held that the provisions of the Customs Act, 1962, starting from Section 45 to Section 49, refer to "goods" and not to containers. The containers carrying the cargo were not imported goods and thus, the provisions of the Customs Act did not apply to them. Consequently, no permission from the Customs authorities was required for disstuffing the cargo from the containers or for their sale.

4. Responsibility for delays in disstuffing and auctioning the cargo:
The court found that the Port Trust authorities were responsible for the delays in disstuffing and auctioning the cargo. Despite the petitioners' requests and the statutory duty to act within 75 days, the Port Trust authorities failed to take timely steps. The court also noted that the Port authorities waited for about two years to seek a report from the Health Organization regarding the fitness of the cargo for human consumption, which was unreasonable.

5. Liability of the petitioners for ground rent and port charges beyond the statutory period:
The court concluded that the petitioners' liability to pay ground rent and port charges could not extend beyond 75 days from the date of landing of the containers. The court referred to the Supreme Court decisions in Om Sankar Biyani vs. Board of Trustees Port at Calcutta and Ors. and Kutch Shipping Agency Pvt. Ltd. vs. Board of Trustees Kandal Port Trust, which supported the view that the Port Trust authorities could not demand charges beyond the statutory period unless the goods were seized by Customs officers.

Conclusion:
The court quashed the Port Trust authorities' demand for dock stayal charges beyond 75 days and directed them to raise a fresh bill for the statutory period. The petitioners were instructed to pay the revised charges within two weeks, and the Port Trust authorities were ordered to return the containers within one week from the date of payment. The writ petition was disposed of accordingly.

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