9911796707
|
Home
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2019 (4) TMI 41 - HC - CustomsRefund demurrage amount - Whether CELEBI can justly withhold the amounts paid and refuse to refund them to the ILFC, which claims that its action in importing the aircraft engine and exporting it was out of compulsion, even necessity, to safeguard its interests as property owner? Held that - Supreme Court in the case of INTERNATIONAL AIRPORTS AUTHORITY VERSUS GRAND SLAM INTERNATIONAL OF INDIA 1995 (2) TMI 70 - SUPREME COURT OF INDIA ruled that Section 45 of the Customs Act did not, affect International Airport Authority s right to collect charges from the importer- even if the detention were to result in no revenue. Waiver of demurrage charges cannot be issued for the asking; therefore a court in judicial review cannot issue a direction without considering the reasons if they are apparent, that underlie rejection of a request for exemption or waiver. After all, warehousing and at the behest of the law (the Customs Act) is a commercial activity, for which the warehouseman or service provider (like CELEBI) invests with its resources, deploys manpower and creates infrastructure. The fee or consideration payable are determined by the duration or period for which warehousing is necessary, the kind of storage provided including the safety and security to the goods. Unless the rules or relevant policy clearly mandate waiver from such services, courts cannot issue directions to such service providers. In this case, CELEBI relied on Clause 10.1.10 (b) to say demurrage waiver was precluded. In so saying, CELEBI was consistent with its policy. Petition dismissed - the petitioner (ILFC) shall pay the costs of these proceedings, to CELEBI, quantified at ₹ 3,00,000/- within two weeks.
Issues Involved:
1. Refund of demurrage charges by CELEBI. 2. Legality of detention by customs authorities. 3. Entitlement to duty drawback under Section 74 of the Customs Act. 4. Waiver of demurrage charges under the policy of the Airport Authority of India (AAI). Detailed Analysis: 1. Refund of Demurrage Charges by CELEBI: The petitioner, ILFC, sought a direction for the refund of demurrage charges paid to CELEBI for the release of its aircraft engine. CELEBI refused to refund, arguing that the demurrage charges were justly collected. ILFC contended that the demurrage could not be validly collected, especially after the CESTAT's findings that the detention was illegal. ILFC relied on the court's previous order dated 28th July 2014, which stated that the demurrage paid would be refunded if no fine, penalty, or warning was imposed by the customs authorities. CELEBI, however, argued that the policy for waiver of demurrage charges did not permit such waiver if a fine or penalty was imposed. The court concluded that CELEBI acted within its rights to refuse the waiver of demurrage charges, as ILFC's denial of duty liability and the subsequent adjudication constituted a dispute in assessable value, precluding waiver under Clause 10.1.10(b) of the 1999 policy. 2. Legality of Detention by Customs Authorities: ILFC argued that the detention of the aircraft engine by customs authorities was illegal. The CESTAT, however, rejected this argument, stating that the detention was a revenue recovery action permissible under law and not a seizure under the Customs Act. The court noted that the original importer was Kingfisher Airlines, and ILFC, as the owner, had to step in due to Kingfisher's financial condition. The court upheld the CESTAT's finding that the detention for revenue recovery was legal and valid. 3. Entitlement to Duty Drawback under Section 74 of the Customs Act: ILFC claimed entitlement to duty drawback under Section 74 of the Customs Act, arguing that the re-export of the aircraft engine was for the sole purpose of facilitating the movement of the aircraft back to its origin. The court observed that the Revenue's stand was based on the Foreign Exchange Management (Export of Goods and Services) Regulations, 2000, which required a Guaranteed Remittance Declaration. The court found that in the peculiar facts of this case, the requirement for such a declaration was uncalled for, as the exporter and the owner of the engine were the same entity. The court directed the customs authorities to process the drawback claim and release the amounts within four weeks. 4. Waiver of Demurrage Charges under the Policy of the Airport Authority of India (AAI): ILFC relied on the policy for waiver of demurrage charges notified by AAI in 1999, which stated that demurrage charges shall not be waived where any fine, penalty, personal penalty, or warning is imposed by the customs authority. The court referred to the decision in Trip Communication Pvt. Ltd. vs. Union of India, which distinguished between cases where the importer is innocent and cases where the importer is at fault. The court noted that in this case, the penalty imposed by the customs authority was set aside by CESTAT, but the detention was justified. Therefore, CELEBI acted within its rights to refuse the waiver of demurrage charges, as the dispute in assessable value precluded such waiver under the policy. Conclusion: The court dismissed ILFC's petition, holding that CELEBI was justified in refusing the waiver and refund of demurrage charges. The court emphasized that waiver of demurrage charges cannot be issued for the asking and must be considered in the context of the relevant policy and circumstances. The petitioner was directed to pay costs of ?3,00,000 to CELEBI.
|
