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TMI Blog2009 (3) TMI 396X X X X Extracts X X X X X X X X Extracts X X X X ..... uty. The petitioner contends that the fourth respondent's officers visited its premises and seized certain goods on 7-6-2005. The petitioner contends having made several representations for the release of goods on provisional basis, in order to save them from deterioration and imposition of detention as well as demurrage charges. When these proved to be of no avail, a W.P(C) 17452-53/2005 was filed before this court, seeking a direction for provisional release of the goods seized in June 2005, under Section 18 of the Customs Act, 1962. When the writ petition was pending, a show cause notice was issued on 17-11-2005, by the DRI to the Petitioner. On 9-12-2005, the Department of Revenue Intelligence (DRI) issued a letter stating that 2000 pieces of Hot Air Gun imported in terms of a Bill of entry dated 30-5-2005, seized on 27-7-2005, for investigation were not covered by the show cause notice. Accordingly those goods were released, in terms of Section 110(2) of the Customs Act. The said letter of 9th December, 2005, inter alia reads as follows: "Subject:- Release of imported goods seized vide Panchnama dated 27-7-2005 in R/O M/s. Shri Siddhi Vinayak Enterprises, New Delhi During th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the APL on 12-12-2005 requesting for waiver of demurrage charges for the period the container was detained by DRI. A similar request was made on the same day to the CONCOR. Apparently Concor granted waiver to the extent of Rs. 20,000 as against the total payment of approximately Rs. 200,000. The petitioner represented against this and sought for full waiver through its letter is dated 27th December, 2005 and 10th January, 2005. The petitioners also rely upon copies of further letters written on 24 January, 2006 and again in March, 2006, asking for complete waiver of the demurrage charges in the peculiar circumstances of the case. In this background the petitioner approached this court and filed another writ proceeding i.e. WP 1700-01/2006. This petition was however withdrawn on 3-5-2006; the petitioner was given liberty to seek "appropriate redress before the appropriate authority in appropriate proceedings" in the following order (of 3-5-2006): "WP 1700-01/2006 After arguing the matter at some length, learned Counsel for the Petitioner seeks leave to withdraw this writ petition reserving liberty for the petitioner to seek appropriate redress before the Appropriate Authority in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arges of the said respondent, for taking delivery of the goods. 7. It is contended on behalf of the petitioner that having regard to the circumstances in fact in this case, the respondents are needlessly and unjustifiably insisting on their pound of flesh. Once it was established that the detention of the entire goods was not in accordance with law, and there was no justification in the initial detention itself, the respondents should have taken that into consideration and demanded only reasonable charges in respect of the goods that had been really detained. Instead Concor is obdurately demanding full demurrage charges, and steadfastly sticking to its position of not granting any rebate. Counsel submitted that having regard to the decisions of the Supreme Court, reported as International Airports Authority v. Grand Slam International - 1995 (77) E.L.T. 753 (S.C.) = 1995 (3) SCC 151 and Union of India v. Sanjeev Woollen Mills - 1998 (100) E.L.T. 323 (S.C.) = 1998 (9) SCC 647, the present case is eminently one where the DRI or the Customs authorities should be saddled with the responsibility of bearing demurrage charges. 8. CONCOR refutes the petitioner's submissions and states th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rage charges, is arbitrary and unreasonable. 11. In Grand Slam International & Ors, in para 36, of Justice Bharucha's judgment, (who delivered the main judgment for the majority), stated: "The judgments aforementioned do not only hold that the importer is liable to pay demurrage though he is not responsible for any delay in clearing his goods." Venkatachala, J concurred with this in para 66 of his judgment. 12. Grand Slam International's case was followed by the Supreme Court in Trustees of Port of Madras v. Nagavedu Lungi & Co. [1995 (80) E.L.T. 241 (S.C.) = 1995 (3) SCC 241]. In para 4 of the judgment, the court referred to the Grand Slam International case and stated that: "........that the importer-consignee of goods cannot avoid liability to pay demurrage charges and other incidental charges in respect of its goods illegally detained in the customs area of the Airport by the Customs Authorities under the Customs Act. The said ruling of this Court as regards liability for demurrage charges and other incidental charges by the importer-consignee of goods illegally detained in the customs area of the airport by the Customs Authority applies to the liability to pay demurrage c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proceedings were pending with the Customs authorities. This Court relied upon Trishul Impex v. Union of India [1992 (58) E.L.T. 182 (Del.)]. That decision had relied on an earlier ruling in Trans Asia Carpets v. Union of India, where the basis was that Airport Authority being an agent of the Collector of Customs was bound by the detention certificate granted by the Collector of Customs. In Trishul Impex it was held that the container depot where the goods were deposited, being custodian for the Customs authorities, was bound by the certificate and was therefore liable to release the goods without any demurrage. 16. The judgments of this Court were subject-matter of the appeals before the Supreme Court [1995 (77) E.L.T. 753 (S.C.)]. In the leading majority judgment of Bharucha, J, after referring to and considering previous judgments of the Court in the Board of Trustees of the Port of Bombay v. Indian Goods Supplying Company (1977) 2 SCC 649 and Trustees of the Port of Madras v. Aminchand Pyarelal (1976) 3 SCC 167 held as follows : "32. This Court in the cases aforementioned, therefore, held that the Board of Trustees of a port was, under the statute that created it, entitled to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... their views, direct them, under the aforementioned provisions, not to levy demurrage charges for periods covered by detention certificates." Justice Venkatachala, in his concurring judgment held that the importer or consignee is liable to pay demurrage for the imported goods even for the periods during which he was unable to clear the goods from the customs area, due to fault on the part of the Customs Authorities or of other authorities who might have issued detention certificates owning such default. The judgments of this Court were not sustained, including the judgment in the case of Trishul Impex. 18. In Shipping Corporation of India v. C.L. Jain Woollen Mills - 2001 (129) E.L.T. 561 (S.C.) = (2001) 5 SCC 345 a three Judge Bench observed that there was no apparent inconsistency between the decision of the Supreme Court in Grand Slam International case and that of Sanjeev Woollen Mills' case [1998 (9) SCC 647]. It was observed that "in view of the specific undertaking given by the Customs Authorities" the Supreme Court had held (in Sanjeev Woollen Mills' case) that from the date of detention of the goods till the Customs Authorities intimated the importer, importer would not b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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