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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 ..... tioners 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 dated 23-10-2000 for the period covering the date on which the Bill of Entry was filed, till the legal and valid assessment of the Bill of Entry, in accordance with law. 2. The petitioner No. 1 is a private limited company, and is an SSI unit, inter alia engaged in the manufacture of Bobbins for textile mills from imported raw material like regrind polycarbonate and was importing such goods regularly. According to the petitioners, several earlier consignments of the same goods had already been allowed clearance by the customs authorities without insisting on any licence, as the goods were freely importable under the relevant Exim Policy. On 23rd October, 2000, upon landing of the consignment which was covered by an invoice dated 26th August, 2000, the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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. However, no action was taken by the officers in the matter. Since the goods had been imported by the petitioner company in October, 2000, and the Bill of Entry dated 23rd October, 2000 filed in respect thereof was still lying with the Customs department, and despite the fact that the action of the customs authorities in confiscating the goods had already been set aside by the Tribunal, the goods were not being cleared by the customs authorities, the petitioners have approached this Court seeking the reliefs noted hereinabove. 6. On 5th September, 2001, this Court had passed an order in the following terms :- "After arguing the matter at some length by the learned counsel for the parties, a request has ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lhi 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 Excise (Appeals), Hyderabad, 2002 (141) E.L.T. 343 (A.P.), was cited for the proposition that when the importer was not to blame for the delay in removal of goods which had been illegally detained by the customs authority, it would be only fair and just that the customs authorities, who were responsible for the situation, to bear the burden for paying port charges. 10. Reliance was also placed upon a decision of the Madras High Court in the case of R.K. Enterprises v. Board of Trustees, Chennai Port Trust, 2010 (257) E.L.T. 67 (Mad.), wherein the Court, after considering various decisions of the Supreme Court as well as other High Courts, held that demurrage charges in respect of the petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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 the present case, the respondents had ordered confiscation of imported goods and the petitioner Company was given an option to pay redemption fine of rupees sixteen lakhs for the goods valued at Rs. 15,93,943/- and, therefore, the petitioner Company could not have paid such a disproportionate amount as redemption fine in any case, more so when the petitioner Company had succeeded in the previous round of litigation in proving that the goods in question were not plastic scrap requiring any import licence. It was accordingly submitted that the stand of the Department that the petitioner Company has to bear the burden of detention charges, ground rent etc. for the intervening period eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 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 liability of meeting the demurrage charges of the approved custodian. To hold otherwise would be unjust to a person who has met with success in his litigation with the Department. The Andhra Pradesh High Court in the case of Sujana Steels Ltd. v. Commissioner of Customs and Central Excise (Appeals), Hyderabad (supra) has placed reliance upon the decision of the Supreme Court in the case of Padam Kumar Agarwalla v. The Additional Collector of Customs, Calcutta, AIR 1972 S.C. 542 = 2004 (177) E.L.T. 18 (S.C.), wherein the Court had, while quashing the order of confiscation passed by the Customs authorities opined that there would be no difficulty in directing release of the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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