2009 (3) TMI 396 - HC - Customs

Liability of importer to pay demurrage charges - the importer/consignee of goods cannot avoid liability to pay demurrage charges to the warehousing/port or airport authorities even though the goods may have been illegally detained in the Customs Area/Bonded Warehouse by the Customs authority. There cannot be an invariable assumption of customs departments - in this case, DRI s liability to pay such demurrage or charges, in every case where the detained goods are eventually cleared, upon the importer succeeding. The contentions of the respondents have, therefore, to be upheld in so far as the liability of the petitioner to pay demurrage charges are concerned for the period up to adjudication process, the petitioner can have no cause of action. - The court is also of the opinion that having agitated the same issue, in the previous proceeding, and being aware that full waiver is not permissible, the writ petitioner could not have approached the court again, having withdrawn the previous petition, on the same cause of action. Besides, the petitioner has neither attacked any policy on which waiver is granted or refused; not does it voice a grievance based on mala fides. For these reasons, the reliefs claimed by it cannot be granted. - The writ petitions have to, for the above reasons fail; they are accordingly dismissed,

Summary

Issues Involved:
1. Waiver of detention and demurrage charges.
2. Liability for demurrage charges.
3. Authority and policy of CONCOR regarding demurrage charges.
4. Applicability of Supreme Court precedents.

Issue-wise Detailed Analysis:

1. Waiver of Detention and Demurrage Charges:
The petitioner, a partnership firm importing power tools, sought directions for the waiver of detention and demurrage charges from the respondents APL (India) Pvt. Ltd. and Container Corporation of India (CCI). The petitioner argued that the goods were detained by the Directorate of Revenue Intelligence (DRI) without any fault on their part and requested a waiver of these charges. Despite several representations and a previous writ petition, only partial waiver was granted by CONCOR, leading the petitioner to file another writ proceeding.

2. Liability for Demurrage Charges:
CONCOR disputed the petitioner's contentions, asserting that the petitioner had no locus standi as they did not possess any valid delivery order or Customs 'out of charge' documents. CONCOR argued that demurrage charges were justified as the petitioner had not completed customs formalities within the provided free time. The court noted that the petitioner was aware of potential demurrage charges and had initially sought complete exemption but later blamed the DRI for the charges.

3. Authority and Policy of CONCOR Regarding Demurrage Charges:
CONCOR maintained that as per their policies, demurrage charges are applicable after the free time allowed for customs clearance. They had granted a partial waiver but insisted on full payment for the period the goods were detained. The court upheld CONCOR's position, noting that the petitioner had not provided any new facts or attacked the policy on which waiver decisions were based.

4. Applicability of Supreme Court Precedents:
The court referenced several Supreme Court judgments, including Grand Slam International, Trustees of Port of Madras, and Sun Export Corporation, which established that importers are liable for demurrage charges even if the goods are detained by customs authorities. The court emphasized that there is no invariable assumption of customs' departments' liability to pay such charges. The petitioner's reliance on these precedents was found insufficient to absolve them of liability for demurrage charges.

Conclusion:
The court dismissed the writ petitions, concluding that the petitioner had no cause of action for complete waiver of demurrage charges. The court noted that the petitioner had previously withdrawn a similar writ petition and had not presented any new facts or challenged the relevant policies. Thus, the reliefs claimed by the petitioner were denied, and the petitions were dismissed without any order on costs.