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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 ..... s 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, - 11282 of 2006 - - - Dated:- 13-3-2009 - S. Ravindra Bhat, J. S/Shri H.L. Tiku, Sr. Advocate with Sanjay Goel and Ms. Naina Kejriwal, Advocates, for the Petitioner. S/Shri Baldev Malik with Aakash Pratap, I.S. Alag with J.S. Lamba and R.K. Joshi, Advocates, for the Respondent. [Order]. - In these proceedings, under Article 226 of the Constitution of India, directions to the Respondent Nos. 2 and 3 [APL (India) Pvt. Ltd. - hereafter called "APL" - and the Container Corporation of India - hereafter called CCI] to waive detention and demurrage charges in respect of goods imported by Bill of Entry Number 429285 dated 30th May, 2005 are sought. Another direction to Respondent Nos. 1 to 4 to bear demurrage charges has also been sought. 2. Briefly the facts of the case are that the petitioner is a partnership firm engaged in import of power tools such as Angel grinder, circular saw blade, drill bits, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. NOSU-246 6406 were seized by the officers of the Directorate of Revenue Intelligence, Delhi Zonal Unit, New Delhi on 27-7-2005. These goods were detained on 10-6-2005 at ICD Tughlakabad, New Delhi for investigation. A certificate is being issued as per the request of CONCOR, New Delhi." 4. Taking note of the above developments, a Division Bench of this court disposed of the pending Writ Petition, Nos. 17452-53 of 2005 by an order dated 16-12-2005. The court directed that the goods seized by the respondents should be provisionally released to the petitioners, upon payment of differential duty determined on the goods. The authorities were directed to determine the differential duty and convey the amount within a week from the date of the order. The petitioners were required to furnish a bond favouring the competent authority in regard to the differential duty, if any payable for the imports made over the past five years apart from the penalty in fine, if any that could be levied upon it. The adjudicating authority was required to expedite the adjudication process to ensure that final orders on the subject were passed by it expeditiously but not later than three months from th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds as it has not disclosed any valid delivery order nor was the Customs 'out of charge' ever produced before it i.e. CONCOR. It is contended that on arrival of the vessel at Port, containers are offloaded and stacked in the port area. Permission for transshipment of the containers meant for ICD, New Delhi, is then obtained by respective shipping lines from the Mumbai customs office. After completion of this formality, containers are shifted from Port to railhead; thereafter a forwarding note is executed by the Shipping Line booking the containers by Rail Ex-Mumbai ports to ICD, Delhi and the Inland Way Bills issued to the shipping lines. On arrival of the containers at ICD, New Delhi, they are offloaded and stacked in the container yard; free time of three working days are given to the importer or the consignee for completion of customs formalities and clearance of the goods from ICD yard. After expiry of the free time, CONCOR charges demurrage. The tariff fixed at the relevant time for the demurrage has also been disclosed. Apparently it is on an increasing scale up to the 15th day after which the same rate is charged for the goods which are not cleared. Concor contends that the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ention certificate acknowledging that a portion of the goods were not subject matter of the show cause notice issued on 17-11-2005; the previous writ petition being disposed of directing the authorities to complete adjudication in a time bound manner and also to consider the petitioner's request for release of the goods, provisionally, there are no dispute between the parties. The petitioner's grievance however is that Concor is unjustifiably insisting on payment of Demurrage charges, despite there being no fault or wrongdoing by it (i.e. the petitioner). 10. It is evident that the petitioners had approached this court on two previous occasions; both the writ petitions were heard by a Division Bench. While the first petition was disposed of at a time when the detention order had not yet been issued, there is no gainsaying that the subject matter of the second writ proceeding was precisely the same as in the present case. In the second writ proceeding i.e. WP 1700-01/2006, a similar relief appears to have been claimed for waiver of demurrage. Yet, the petitioner was constrained to withdraw the Writ proceeding and approach the authorities. The latter did not change their position w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt in their custody. The importer/consignee is liable for those charges even for periods during which it is unable to clear the goods due to fault of the Customs authorities and even when goods have been confiscated by the Customs authorities. 15. Grand Slam International's case, was in the context of a bunch of appeals. In those cases, the Customs department had issued detention certificate (which in effect certifies the period of detention and directing that no demurrage may be charged for the specified period goods were subject-matter of adjudication proceedings). Such detention certificate had been issued to IAAI, and Central Warehousing Corporation (for short CWC) where the goods had been in their custody. The IAAI or the CWC, instead of treating the entire period as 'free' period granted rebate and calculated demurrage in accordance with the tariff schedule framed by them. The amount of demurrage in each case amounted to several times more than the value of the goods. The respondent-importer/consignee in that bunch of cases thereupon approached this Court through writ petitions. The petitions were allowed and it was held by this High Court that the IAAI or the CWC, being cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lear them only after completion of customs formalities. For this purpose, the seaports and airports are approved and provide storage facilities and Customs officers are accommodated therein to facilitate clearance. For the occupation by the imported goods of space in the seaport or airport, the Board or the Authority which is its proprietor is entitled to charge the importer. That until customs clearance the Board or the Authority may not permit the importer to remove his goods from its premises does not imply that it may not charge the importer for the space his goods have occupied until their clearance." Further in para 44 (SCC), it was held it was held that: "44. It cannot be gainsaid that, by reason of unjustified detention of his goods by the Customs Authorities, the importer is put to loss by having to pay demurrage charges for the periods of such detention. The Central Government is empowered by Section 35 of the International Airports Authority Act, 1971 and Section 111 of the Major Port Trusts Act, 1963 to issue to the Authority and Board of Trustees, respectively, directions on questions of policy after giving them an opportunity, as far as practicable, of expressing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not 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. 21. Here, the petitioner was aware about a possibility of demurrage charges payable by it even by its assessment in respect of the goods which are the subject matter of the pending show cause notice. Yet it did not evince the desire to pay such amounts, and instead initially sought complete exemption, and on being given part of it, changed its position and started blaming the DRI. It is not known whether the goods were ultimately directed to be released after adjudication by the authorities. What however, is apparent from ..... X X X X Extracts X X X X X X X X Extracts X X X X
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