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TMI Blog2009 (11) TMI 436X X X X Extracts X X X X X X X X Extracts X X X X ..... gated by the third respondent on suspicion of gross under valuation of the goods and the goods were detained by the second respondent in the first respondent premises. 3. After investigation, a show cause notice dated 23-3-2000 was issued for which a personal hearing was granted by the second respondent. By an order dated 1-5-2003 the second respondent dropped all the charges made under the show cause notice dated 23-3-2000. By the said order the second respondent accepted the value declared by the petitioner firm and both bills of entry and the third respondent advised the petitioner to contact the second respondent for further action. After passing of the proceedings, the customs officers examined the goods and assessed the bills of entr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rned counsel for the petitioner submitted that the imports made by the petitioner was according to law and the value declared by the petitioner was accepted after adjudication and the investigation conducted by the second respondent shows that the petitioner is no way responsible the detention and it is not liable to pay the demurrage charges and that the petitioner is not liable and only the second respondent custom authority is liable to pay the amounts. 7. On the other hand Mr. Arunkumar, learned Central Government Standing Counsel submitted that the first respondent port trust has to waive the demurrage charges. In Paragraph 5 of the counter affidavit filed by the respondents 2 and 3 states follows: "5 It is true that Port Authorities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cess of appraising and issuance of certificate by the Commissioner of Customs to be not attributable to any fault or negligence on the part of the Exporter, for such periods of detention, the demurrage charges shall be recovered as under: First 45 days: Free 46 days to 60 days: 25$ of actual demurrage charges 61 days to 90 days: 50% of actual demurrage charges Beyond 90 days: 100% of actual demurrage charges Actual demurrage charges at full rates shall be worked out as per Scale of Rates at the appropriate slab as applicable after 45 days and the concessional rate mentioned above shall be applied thereon the full demurrage charges leviable. The first 45 days shall be reckoned with as follows: (i) first 45 days after ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... similar issues arose. The detention order was passed against the importer and that order was challenged by the importer before The Hon'ble Delhi High Court. It declared that the confiscation of goods as illegal. As the confiscation was declared illegal, the question of payment of demurrage arose and the Hon'ble Supreme Court after elaborate discussion of the various provisions of the Customs Act and Indian Bills of lading Act 1956 and Section 170 of Indian Contract Act held that in the absence of any provisions in the Customs Act entitling the custom officer to prohibit the owner of the space, where the imported goods have been stored, from levying the demurrage charges; Levy of demurrage charges for non-release of goods is in accordance wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... liable to pay demurrage charges being responsible for the delay in releasing the goods. 11. Learned Central Government Standing Counsel does not dispute the proposition of law and only submitted that the Custom authority cannot be held liable. 12. In view of categorical pronouncement of the judgments by the Hon'ble Supreme Court and other High Courts, the d charges in respect of petitioner's goods which were detained in the first respondent premises at the instance of the second respondent Custom authority, the custom alone is liable to pay demurrage charges. Apart from that confiscation/retention of goods on suspicion was dropped by virtue of the order passed by the Assistant Commissioner of Customs on 1-5-2003 itself and that is the pos ..... X X X X Extracts X X X X X X X X Extracts X X X X
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