2012 (4) TMI 235 - HC - Customs

Writ petition under Articles 226 and 227 of the Constitution of India - for direction to the respondents to deliver goods mentioned in the 3 bills of entry, without payment of detention and demurrage charges and award of exemplary costs petitioner imported synthetic wastes soft quality but on tests done by CRCL on sample taken depicted to be staple fiber petitioner highlighted delay commited by Department between the date of receipt of the test report and the date of issue of the show cause notice petitioner seek direction against department to withdraw the show cause notice and further direction to clear the goods for home consumption - respondent contented that the method of taking sample was not correct - out of six reports three are in favour of petitioner one is favouring the respondent and two reports are unequivocal the goods were directed to be released forthwith on furnishing of provisional duty bond - petitioner claims that they had executed provisional duty bonds but the goods were not released for want of detention charges Held that - The petitioner submitted their reply to show cause notice dated 29th August, 1991, only on 5th March, 1992. Even if the petitioner was relying upon and wanted a copy of the test report by SASMIRA, the delay is not justified - The action of the customs authorities cannot be substantially faulted, once they had issued detention certificates in 1993, except to the extent of passing of the adverse assessment order - Contention of petitioner that none of the partners were willing to bear and pay the demurrage charges as there was no certainty when, how and who would be entitled to sell the goods and how the profits would be distributed cannot be accepted - If the petitioner had made payment of reduced demurrage charges on the basis of the detention certificates, the position may have been different - the petitioner had failed to take delivery of the consignment even after order dated 23rd April, 1993 and in such circumstances it is not viable for respondent- custom to pay the demurrage or container charges - writ petition dismissed

Issues Involved:
1. Delay in drawing samples and obtaining test reports.
2. Issuance of show cause notice and subsequent delays.
3. Dispute regarding the nature of imported goods.
4. Issuance and effect of detention certificates.
5. Liability for demurrage and container charges.
6. Inter-se disputes between partners of the petitioner firm.
7. Comparison with the case of M/s Sanjeev Woolen Mills.
8. Judicial directions and compliance by customs authorities.
9. Legal principles regarding demurrage charges and detention certificates.

Issue-wise Detailed Analysis:

1. Delay in Drawing Samples and Obtaining Test Reports:
The petitioner imported synthetic waste soft quality, but there was a significant delay in drawing samples and obtaining the test report from CRCL. The samples were drawn on 19th April 1991, sent to CRCL in June 1991, and the report was received on 8th July 1991. This delay was highlighted by the petitioner as a failure on the part of the customs authorities to act promptly.

2. Issuance of Show Cause Notice and Subsequent Delays:
A show cause notice was issued on 29th August 1991, nearly six months after the filing of the bills of entry. The petitioner submitted a reply on 5th March 1992, relying on a test report from SASMIRA, which supported their declaration. Despite this, there was a delay in the customs authorities taking further action, and the petitioner had to approach the High Court for relief.

3. Dispute Regarding the Nature of Imported Goods:
The core issue was whether the imported material was synthetic waste soft quality or staple fibre. Multiple test reports were obtained, with conflicting results. The Customs, Excise, and Services Tax Appellate Tribunal eventually ruled in favor of the petitioner, stating that the evidence predominantly indicated the goods were synthetic waste soft quality.

4. Issuance and Effect of Detention Certificates:
Detention certificates were issued by the customs authorities for the period 22nd March 1991 to 29th May 1991. However, the Container Corporation of India and the Shipping Corporation of India were not agreeable to a complete waiver of container/demurrage charges despite these certificates.

5. Liability for Demurrage and Container Charges:
The petitioner argued that the customs authorities should bear the demurrage/container charges due to their wrongful detention of the goods. The court referred to the Supreme Court's decision in Shipping Corporation of India vs. C.L. Jain Woollen Mills, which clarified that detention certificates issued by customs do not mandate a waiver of demurrage charges by the shipping/warehousing companies.

6. Inter-se Disputes Between Partners of the Petitioner Firm:
There were disputes among the partners of the petitioner firm, which contributed to the delay in taking delivery of the goods. This internal conflict was noted as a factor that prevented the petitioner from paying the reduced demurrage charges and releasing the goods.

7. Comparison with the Case of M/s Sanjeev Woolen Mills:
The petitioner compared their case with M/s Sanjeev Woolen Mills, where the customs authorities had given an undertaking to bear demurrage charges if the goods were found to be synthetic waste soft quality. However, the court distinguished the present case, noting that no such undertaking was given, and detention certificates were issued.

8. Judicial Directions and Compliance by Customs Authorities:
The High Court had directed the customs authorities to issue detention certificates and release the goods on furnishing provisional duty bonds. The customs authorities complied with these directions, but the petitioner did not take delivery of the goods, citing high demurrage charges.

9. Legal Principles Regarding Demurrage Charges and Detention Certificates:
The court reiterated that detention certificates do not compel shipping/warehousing companies to waive demurrage charges. The liability for such charges remains with the importer unless exceptional circumstances justify shifting the burden to the customs authorities.

Conclusion:
The court dismissed the writ petition, holding that the customs authorities could not be directed to pay the demurrage/container charges. The petitioner had failed to take delivery of the goods despite the issuance of detention certificates and favorable court orders. The internal disputes among the partners and the delay in responding to the show cause notice were significant factors in the court's decision. The dismissal of the writ petition does not affect the ongoing civil suit filed by the Shipping Corporation of India.

← Previous Next →