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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 ..... petitioners were required to re-export those two containers immediately after disstuffing the cargo, otherwise penalty would be imposed upon them as per Section 142 of the Customs Act, 1962. The consignee of the imported cargo neither turned up to take delivery of the imported cargo nor abandoned the cargo. In such a situation the petitioner no.1 by its letter dated 23rd November, 2002, requested the Port authorities to allow the petitioners to disstuff the said cargo immediately as the said imported cargo was perishable item as notified under the manifest. In reply to the said letter, the authority of the Kolkata Port Trust, by its letter dated 26th November, 2002 informed that the steps have already been taken for disposal of the cargo by conducting auction thereof. The petitioner was further informed that disstuffing of the cargo would be allowed at the time of delivery thereof to the buyer after the cargo is sold through auction. Thus, the Port Trust authorities did not agree with the petitioners' proposal for immediate disstuffing of the cargo and/or release of the containers to the petitioner. Subsequently by another letter dated 30th November, 2002 the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on'ble Court by an order passed by the learned Single Judge of this Court on 8th October, 2004 in W.P. No. 1537 of 2003 (Private Consumer Cooperative and Stores Limited and Anr. vs. Union of India) took physical possession of the contents of those two containers on 26th October, 2004 for onward removal thereof outside the Port premises. Thereafter by the impugned letter dated 5/8th November, 2004 the Port authorities demanded a sum of Rs. 2,61,681/- towards the dock stayal charges of those two containers during the period of their stay in the port area i.e. from the date of their respective landing at the dock up-to the date of removal of those containers from the port area. The legality of such demand of the Port Trust authority is under challenge in this writ petition at the instance of the Line Operator viz. the container owner. It is contended by Mr. Bose, learned senior Counsel, appearing for the petitioners that as per Sections 61 and 62 of the Major Port Trust Act, 1963, the Port Trust authorities were required to sell the cargo after sixty days from the date of their landing, as the cargo was neither cleared either by the consignee or by its agent within the sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in Sections 45 to 49 of Customs Act, 1962 have no application to the containers; firstly, for the reason that the containers can neither be regarded as "goods" within the meaning of "goods: as contemplated under the Customs Act nor those containers were imported either by the consignee or by the line operator. According to Mr. Basu, since those containers were neither imported goods nor those containers were imported either by the consignee or by the line operator no permission was required from the Customs authorities either for disstuffing the cargo therefrom or for delivering the empty containers by the Port Trust authorities to the petitioners. Mr. Basu also referred to another Single Bench decision of the Hon'ble Bombay High Court in the case of Industrial Cables (I) Ltd. vs. Board of Trustees of Port of Bombay reported in (1990) 45 ELT 395 (Bombay) to support his stand that the Port Trust authority having independent right to sell the cargo due to non-clearance thereof from warehouse within the stipulated time or for non-payment of rent under the Major Port Trust Act, permission of the Customs department under the provision of Section 48 of the Customs Act, 196 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es remain unattended and even no reply was given to such request of the Port authorities by the Customs authorities. Thus, the Port authorities wanted to explain the reason which prevented them from selling the said cargo within the time as stipulated in Sections 61 and 62 of the Major Port Trust Act read with TAMP's order dated 19th July 2000 in the aforesaid manner. Mr. Talukdar, learned Senior Counsel, appearing for the Port Trust authority, also drew my attention to the decision of the Hon'ble Supreme Court in the case of Kandala Port Trust vs. Good Rick Mari Time Pvt. Ltd. and Anr. Reported in (2010) 11 SCC 789 wherein the Supreme Court clarified that besides the TAMP's order, defence of the port must also be heard and considered for proper adjudication of the issue. Relying upon the said decision Mr. Talukdar submitted that the reasons which prevented the Port Trust authorities for not selling the cargo and/or disstuffing the cargo from the containers, are also required to be considered for ascertaining as to whether the Port Trust authorities can be blamed for not carrying out their statutory duties within the prescribed time in the facts of the instant c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... os until fitness certificate was received by them. Thus, Mr. Talukdar invites this Court not to interfere with the impugned demand which, according to him, was legal, justified and reasonable. Though the Customs authorities appeared in this proceeding but they did not use any affidavit in connection with this writ petition. Mr. Maity, learned Advocate, appearing for the Customs authorities, submitted in clear terms before this Court that permission for sale of the imported goods is necessary only when the goods are seized by the Customs officers. He further submitted that even no permission from the Customs authorities is necessary to disstuff the cargo from the containers. Thus, he contended that his client cannot be held responsible for the delay which was caused by the Port Trust authorities in taking step for sale of the cargo stuffed inside those containers. Let me now consider the submission of the learned Counsel of the respective parties in the facts of the instant case. Sections 61 and 62 of the Major Port Trust Act, 1963 authorize the Port Trust authorities to sell the good under certain situations. Section 61 deals with the Port Authority's po ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has no other option but to wait for 75 days for the Port Trust Authority to act in terms of Section 61 of the said Act. Thus, if the container owner wants Port Trust Authority to release the containers without abandoning the cargo, he must wait for 75 days for auction of the cargo. This necessarily follows that if the container owner wants the containers to be released before 75 days then he has to remove the containers with the cargo outside the Port area after payment of all port charges and/or customs charges. However, in case either the cargo or the containers are seized and/or confiscated by the Customs Authority, then 75 days' time limit is not attracted, as sale of the cargo by the Port authority, in such a situation, is not possible unless the cargos or the containers are released by the Customs Authority. However, if the container owner wants the cargo to be disstuffed from the containers then he has to bear the cost of disstuffing and is also required to complete necessary formalities under the Major Port Trust Act and is also required to fulfill the undertaking given by the Line operator in his declaration before the Customs Authority. Here is the case where ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... necessary from his client. In view of such submission made by the learned Advocate, appearing for the Customs authorities, this Court has no hesitation to hold that there was no impediment on the part of the Port authorities in selling the cargo after expiry of 75 days from the date of its landing, notwithstanding the fact that neither the consignee nor the line operator abandoned the cargo. Such abandonment by the Line operator is necessary only in a case where the line operator wants to get his containers released after disstuffing the cargo from it within 75 days from the date of its landing. Since the Port Trust authorities failed to discharge their duties to sell the cargo within a reasonable time beyond 75 days, despite notice was given by the petitioners to the Port Trust authorities for release of their containers after disstuffing the cargo therefrom, this Court has no hesitation to hold that the Port Trust authorities cannot demand the port charges and/or ground rent from the petitioners beyond 75 days which is the statutory time limit within which the Port Trust authorities are not permitted to sell the cargo in case the cargo is not abandoned either by the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt from the concerned Health Officer as to the fitness of the cargo for human consumption immediately after expiry of 60 days from the date of landing of those containers. The Port authority miserably failed to discharge its duties in this regard as admittedly the Port authority waited for about two years for seeking a report from the Health Organization as to the certificate of fitness of such goods for human consumption. That apart since the Customs authorities submitted in clear term that no permission was necessary either for sale of those cargos or for disstuffing the cargo from the containers as those cargos were never seized by the Customs authorities, this Court holds that the Port authorities ought not to have waited for disstuffing the cargos for such a long time on the plea that in the absence of the Customs authorities' permission, they were unable either to sell the said cargo or to disstuff the cargo from the containers. On perusal of the provisions of the Customs Act starting from Section 45 to Section 49 of the said Act, this Court finds that those provisions clearly refer to the "goods" without referring to the containers in which such goods wer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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