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TMI Blog2011 (3) TMI 1445X X X X Extracts X X X X X X X X Extracts X X X X ..... nd A.Y. Kogje, Standing Counsel, for the Respondent. [Judgment per : Harsha Devani, J. (Oral)]. By this petition under Article 226 of the Constitution of India, the petitioners had prayed for the following substantive reliefs :- 13. In the above premises, the petitioners most respectfully pray as under :- 1. That Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, direction or order, directing the third respondent herein to forthwith assess the Bill of Entry No. 600739/00 dated 23-10-2000 in accordance with the Final Order No. C-I/1750-51/WZB/2001 dated 13-7-2001 (Annexure- D hereto) and be further pleased to direct the respondents, their employees, servants and agents to immediately allow the petitioners to clear the goods covered under Bill of Entry No. 600739/00 dated 23-10-2000; 2. That Your Lordships may be pleased to issue a Writ of Mandamus or a Writ in the nature of Mandamus or any other appropriate writ, direction or order, directing the respondents herein to issue a Detention Certificate in favour of the petitioners for the goods imported vide Bill of Entry No. 600739/00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Control) Appellate Tribunal, Mumbai (Tribunal) who vide an order dated 13th July, 2001 [2001 (133) E.L.T. 807 (Tri. - Mum.)] set aside the order passed by the Commissioner of Customs and also observed that the approach of the Commissioner in the present case was not proper. Upon receipt of the final order of the Tribunal on 16th July, 2001, the petitioner company addressed a letter dated 19th July, 2001 to the third respondent to instruct the Assistant Commissioner of Customs, ICD, Sabarmati, to finally assess the Bill of Entry for the goods in question in accordance with the order of the Tribunal. Despite the aforesaid, no action was taken by the third respondent or his subordinate officers. The representative of the petitioner company, therefore, personally met the third respondent and requested him to allow clearance of the goods imported by the petitioner company since no dispute survived. However, no satisfactory reply was received by the petitioners. 5. On 25th July, 2001, the petitioner company made a representation to the Chief Commissioner of Customs, the second respondent herein and brought the aforesaid facts to his notice and requested him to intervene in the matter. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tificate in its favour for the goods imported under the above referred Bill of Entry. In support of his submission, the learned advocate placed reliance upon a decision of the Karnataka High Court in the case of Tirupathi Plastics v. Assistant Collector of Customs, 1990 (49) E.L.T. 49 (Kar.) for the proposition that when the dispute between the importer and the customs authorities is resolved by a procedure known to law, and the Department succeeds in justifying its retention, then the burden of demurrage will necessarily fall upon the importer. If otherwise, the Department must necessarily take on the liability of meeting the demurrage charges. Reliance was also placed upon a decision of the Delhi High Court in the case of Shubham Enterprises v. Collector of Customs, New Delhi, 1995 (80) E.L.T. 250 (Del.), wherein the Court had held that since the petitioner therein had succeeded before the adjudicating authority and the show-cause notice had been dropped, it would be entitled to detention certificate for the period the adjudicating proceedings had been pending. The decision of the Andhra Pradesh High Court in the case of Sujana Steels Ltd. v. Commissioner of Customs and Central E ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Commissioner of Customs, Mumbai. It was submitted that in the light of the aforesaid facts it is evident that the action taken by the respondents was bona fide. Attention was invited to the Public Notice No. 38/2001 dated 22nd March, 2001 issued by the Commissioner of Customs (Import), Mumbai, and more particularly to clause (v) of paragraph 5 thereof, to submit that in cases where the parties prefer to go in appeal before the appellate authority on live Bill of Entry without clearing goods on payment of redemption fine, they are required to pay demurrage or detention charges etc. as the liability has arisen due to their preference for filing appeal on live Bill of Entry. It was submitted that in the light of the said circular, the petitioner company is liable to bear the detention charges as it had preferred to go in appeal against a live Bill of Entry and as such, is not entitled to the issue of a detention certificate. It was accordingly submitted that the petition is devoid of any merit and as such the petitioners are not entitled to any of the reliefs claimed in the petition. 12. In rejoinder, Mr. Paresh Dave, learned advocate for the petitioners submitted that in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner company had succeeded before the Tribunal in its challenge to the order made by the Commissioner of Customs whereby he had ordered confiscation of the subject goods and had also imposed penalty. The Tribunal vide its order dated 13th July, 2001, has set aside the order of the Commissioner of Customs, Gujarat, Ahmedabad. It is also an accepted position that the said order of the Tribunal has not been carried any further by the respondents. In the circumstances, the order dated 13th July, 2001 of the Tribunal has attained finality. Thus, vide the order passed by the Tribunal, the order of confiscation of the goods covered under the Bill of Entry No. 600739/00 dated 23rd October, 2000 as well as penalty imposed by the Commissioner has been set aside. 14. As noted hereinabove, different High Courts, viz., the High Courts of Madras, Karnataka, Delhi and Andhra Pradesh have held that when the dispute between the importer and the customs authority is resolved by a procedure known to law, if the Department succeeds in justifying its relation, then the burden of payment of demurrage will necessarily fall on the importer. If it is otherwise, the Department must necessarily take on the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereby the petitioners have been permitted to clear the goods, the petitioners have accordingly cleared the goods upon payment of warehousing charges to the custodian, that is, the Central Warehousing Corporation as is apparent from the averments made in the affidavit-in-reply filed by the respondents wherein it has been stated that the petitioners had paid warehousing charges amounting to Rs. 93,622/- to the Central Warehousing Corporation before taking delivery of the subject goods on 12th September, 2001. In the circumstances, issue of a detention certificate may not serve any purpose. The relief prayed for in the petition is therefore, required to be moulded accordingly. In the aforesaid premises, instead of issuing a detention certificate, the Department shall be liable to bear the warehousing charges amounting to Rs. 93,622/- which has been paid by the petitioners and as such, the petitioners would be entitled to reimbursement of the same. Accordingly, the respondent No. 3 is directed to reimburse the amount of Rs. 93,622/- paid by the petitioners to the Central Warehousing Corporation as stated by the respondents in paragraph 16 of their affidavit-in-reply dated 22nd Septemb ..... X X X X Extracts X X X X X X X X Extracts X X X X
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