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TMI Blog2011 (6) TMI 584X X X X Extracts X X X X X X X X Extracts X X X X ..... f the permission from the Customs authorities under Section 48 of the Customs Act. Port Trust authorities were not justified in claiming demurrages and/or port charges for any period beyond 75 days from the date of landing. petitioners are, thus, directed to pay demurrage charges for 75 days from the date of landing of those containers in the Port area. Port Trust authorities are thus directed to return the containers to the petitioner. writ petition is, thus, disposed of. - W.P. No. 911 of 2005 - - - Dated:- 7-6-2011 - Jyotirmay Bhattacharya, J. Tilak Kr. Bose, Subhojit Roy and Anubhab Sinha for the Appellant S. Talukdar, Nilay Sengupta and A. Bera. for the Respondent JUDGEMENT The petitioners are the owners of two containers forming subject matter of the present writ petition. The petitioner no.1 is acting as a container agent. Two containers were brought by the petitioners stuffed with Beetle nuts and those were landed at Haldia Dock Complex on 4th August, 2001 and 5th August, 2001 respectively. The petitioners being the container owners filed a landing guarantee with the Customs authorities undertaking that after disstuffing cargo, the containers ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... p for sale of those cargo for realizing the port charges and, thus, they themselves became responsible for causing loss to Port Trust fund. Their awareness of their aforesaid duties is reflected from the letter written by the Port authority to another Line Operator, namely, Bengal Tiger Line (I) Pvt. Ltd., on 21st July, 2003. As such they cannot disown their responsibility by pleading ignorance of their statutory duties. The petitioners herein also wrote a letter on 12th September, 2003 requesting the Customs authorities to sell the said unclaimed cargo as per the provision contained in Section 48 of the Indian Customs Act, 1962 so that those containers could be exported by the petitioners as per the Customs regulation. Identical request was made by the petitioners to the Customs authority on 7th April, 2004 as will appear from the petitioners' letter dated 7th April, 2004 addressed to S.A.C./Dy Commissioner of Customs. But all such efforts of the petitioners were in vein as neither the Port Trust authorities nor the Customs authorities took any effective step either for sale of the cargo stuffed in the containers or for release of the empty containers to the petitioners. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pty containers can be delivered to the containers owner immediately thereafter enabling the container owner to re-export the containers either empty or with export cargo within sixty days and/or seventy-five days as the case may be, from the date of its landing so that the declaration given by the petitioner with the Customs authorities can be fulfilled as per the Custom Regulation. Referring to those provisions, it was further contended by him that if those provisions are read conjointly with the Custom Regulation, then necessarily it will follow that the petitioners' liability to pay ground rent and/or port charges cannot extend beyond 75 days from the date of landing of those containers in the port area. Mr. Basu also referred to the following decisions of the Hon'ble Supreme Court to support his submission that the ground rent and/or port charges cannot be demanded by the Port Trust authorities from the petitioners beyond the period prescribed under the statute for sale of the cargo by the Port Trust authorities in case of delivery of the cargo is not taken from the port area within the time prescribed in the statute:- i) In the case of Om Sankar Biyani vs. Bo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctions contained in the order date 19th July, 2000 issued by the TAMP were not fulfilled by the petitioners, they could not take steps for sale of those imported cargos. It was further contended by them that since the petitioner did not undertake to pay the cost of disstuffing and other charges incidental to disstuffing and sale of the said cargos, the Port Trust authorities could not sell those imported cargos. It was also contended by them that since the materials in the containers were Beetle nuts and beetle nuts come under the definition of food under the Prevention of Food Adulteration Act, 1952, no step could be taken by the Port authorities for disposal of the cargo before clearance was given by the Port Health Officer regarding its fitness for human consumption. In fact, the Port Health Organization, after examining the sample of beetle nuts certified on 1st August, 2003 that the cargos in the containers became adulterated and thus became unfit for humane consumption. Incidentally it may be mentioned herein that sample of beetle nuts were sent by the Port Trust authority to the Port Health Organization only on 27th December, 2002 for its examination though those cargos were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, the Hon'ble Supreme Court permitted the Port authorities to charge port charges upto the date when the cargos were abandoned by the respective consignees and/or the containers agents and the physical possession of the goods were, in fact, handed over to the Port authorities for sale. Thus, he refuted the submission of Mr. Basu by contending that 75 days is not the ultimate date beyond which the ground rent and/or port charges cannot be demanded in any circumstances as contended by Mr. Basu. Mr. Talukdar further contended that since in the instant case neither the consignee nor the Line operator abandoned the cargo at any point of time nor they delivered the cargo to the Port Trust authorities for sale thereof nor they fulfilled the formalities by obtaining permission from the Customs authorities to disstuff the cargo and/or for sale thereof nor they undertook to bear the expenses for disstuffing the cargo from the containers, the Port Trust authorities could not take any step to sell those cargos. He further contended that since beetle nuts are food items, sale of such food items could not be organised as the cargos were not certified as fit for human consumption by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ody in a situation contemplated under those two provisions of the Major Port Trust Act after expiry of the statutory period, reference may be made to the orders dated 19th July, 2000 and 13th September, 2005 both issued by the Tariff authority for Major Port Trust (hereinafter referred to as the TAMP) constituted under Chapter V Section 47A of the Major Port Trust Act in this regard. Order dated 19th July, 2000 passed by the TAMP indicates that the Port Trust authorities are required to wait 15 days (10 days for procedural step and 5 days for notice to the consignee) beyond the statutory period of 60 days before selling the cargos by auction. That means 75 days is the ultimate time limit within which the Port Trust authorities cannot sell the cargos unless the cargos are abandoned either by the consignee or by the line operator before expiry of 75 days from the date of landing. The TAMP authority gives clear indication in the order dated 19th July, 2000 that if the letter of abandonment is issued before 75 days, either by the consignee or by the container owner, the Port authorities have to release the containers without waiting for 75 days to auction goods. However, under such cir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eflected in their letter dated 21st July, 2003, addressed to another Line operator viz. Bengal Tiger Lime (I) Pvt. Ltd. The stand taken by the Port Trust authorities in deferring the sale process on a plea that since the cargo was not abandoned either by the consignee or by the line operator and further since the necessary permission was not obtained from the Customs authority for sale of the said cargo, the Port Trust authorities were unable to take steps for sale of the said cargo, was contrary to law and as such the Port Trust authority cannot penalise the Line operator by demanding payment of demurrage for stayal of those containers in the port area beyond 75 days for no fault on the part of the Line operator. Since 75 days was the ultimate time limit either for abandoning the cargo or for clearing the cargo by the consignee or by the Line operator, demurrage can be demanded from them for stayal of the cargo in port area for a maximum period of 75 days unless the goods are seized by Customs Officer. I have already indicated above that the learned Advocate, appearing for the Customs authorities, submitted before this Court in clear term that no permission for sale of cargo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees Port at Calcutta and Ors. (supra) the Hon'ble Supreme Court held that the Board was disentitled to claim demurrage for any period subsequent to the date when the Port authorities were permitted to sell the goods after releasing the goods from seizure. In other words, it was stated therein that so long as the goods are under seizure by the Customs authorities, the Port authorities cannot sell such goods and when the seizure is ultimately lifted even after 75 days, the Port authority can sell even beyond 75 days and in such a situation the Port can certainly charge demurrage till the date when the restriction on sale of such seized items is lifted. In such cases the Hon'ble Apex Court held that 75 days limitation will not be operative. But here in the instant case neither the cargo was seized nor the containers were seized; as such the Port authorities cannot claim any demurrage beyond 75 days after landing of the containers containing the cargo in the port area. Though, it is true, that since the containers were stuffed with Beetle nuts which were food items, the Port authorities could not have sold the cargo unless Health Officer certified that the cargo was fit fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the provision relating to sale of cargo under the Customs Act is different from that of the provisions contained in the Major Port Trust Act. Both the aforesaid Acts operate in their respective fields and one is not dependent on the other. Therefore, it is difficult to accept that the Port Trust authorities could not have sold those cargos in the absence of the permission from the Customs authorities under Section 48 of the Customs Act. Accordingly, this Court holds that the Port Trust authorities were not justified in claiming demurrages and/or port charges for any period beyond 75 days from the date of landing. Thus, the impugned demand contained in annexure P-10 to this writ petition at page 36 stands quashed. The Port Trust authorities are, thus, directed to raise fresh bill towards port charges for a period of 75 days from the date of landing of those containers from the petitioners which, according to this Court, is payable by the petitioners as per law. The petitioners are, thus, directed to pay demurrage charges for 75 days from the date of landing of those containers in the Port area within two weeks from the date of receipt of such bill from the Port Autho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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