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TMI Blog2013 (5) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... countries. The respondent used to place orders and foreign suppliers sent the goods which reached the International Containers Deport (hereinafter referred to as ICD), Tughlakabad. The goods used to be got released by the respondent from there on completing the formalities. 4. The facts giving rise to cause of action for filing the suit pertained to the import of newsprint/printing paper from various countries during the period July, 1997 to December, 1997. On getting the information, respondent filed the bill of entry for release of the goods alongwith complete documents in the office of AC (Customs). The items imported were allowed under Open General Licence but the goods were not released by the Custom on the pretext that previous test reports of such goods were not available. 5. The plaintiff was ready to give the test bonds against each bill of entry alongwith undertaking to pay the custom duty so that it was not burdened with demurrage/detention charges. Despite that, the goods were detailed for want of test reports from the Laboratory. 6. The plaintiff has given the details of each bill of entry alongwith date of arrival of container, name of Shipper, weight and other par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plaint and has proved various documents referred to above. In absence of any version or evidence to the contrary, I find no reason to disbelieve the deposition contained in the affidavit of Mr. K.C. Goel from which it is clearly made out that defendants had no justification to detain the goods for months together when no duty was payable in respect thereof. As a result of this casual and negligent attitude of the defendants, the plaintiff had to suffer heavy losses in terms of demurrage and detention charges which he had to pay and other heads referred to above. Thus suit, therefore, deserves to be decreed ex parte.' 13. Mr. A.S. Chandhiok, learned ASG assailed the judgment referring to the pleadings and evidence adduced by the respondent. Learned ASG urged that even as per averments made in the plaint, the goods imported were newsprint/printing papers. While serving the notice under Section 80 C.P.C., also the case of the respondent was that it imports newsprint/printing papers. It has been urged that under Open General Licence, the respondent could import printing papers as per specification and for import of newsprint, only the actual user of the newsprint was exempted. I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent has rightly been decreed by learned Single Judge. 16. We have given our thoughtful consideration to the rival contentions. At the best, the respondent could predicate its claim on detention certificate certifying as under :- 'This is certified that the above container/s had to be detained for carrying out checks necessitated by circumstances of the case. However the importer was not found to be at fault.' 17. In the given circumstances, the respondent, at the most, can rely upon (1998) 9 SCC 647 = 1998 (100) E.L.T. 323 (S.C.) - Union of India v. Sanjeev Woolen Mills to seek directions from the Court that in the peculiar facts and circumstances, the Custom Authorities were liable to pay detention charges/demurrage. We may clarify here that in Sanjeev Woolen Mills's case (Supra) the Supreme Court has whittled down the liability of the importer to pay the demurrage on the assumption that the goods had been detained illegally by the Custom Department, thus making them liable to pay the demurrage. The Apex Court while repelling the apprehension of Union of India that it would constitute a precedent, in para 18 of the report observed thus :- '18. Looking to the totality of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er with your principals to verify the description of the paper originally despatched and why double marking has been made. Please treat the matter as most urgent as the consignment is being held up in customs and bearing heavy detention/ground rent. Please also note that we will not be responsible for any amount of detention/ground rent on account of delay to clear the matter and satisfy the customs. Thanking You Yours faithfully For Nav Shakti Industries (P) Ltd.' 19. Now it would be advantageous to refer Ex. P4 addressed to AC, Custom by respondent to clarify kind of paper imported on the basis of certificate received from the mill. In the letter Ex. P4 (which is typed copy of letter Ex. P3), in first para, the details of the import of 120 M. Tones of printing paper through Anika International Pvt. Ltd. were given, and the remaining part of the letter is extracted as under :- "On physical examination of the goods it was found that the reels marked opelite directory paper which is the printing paper of 36 GSM and not newsprint. GSM is marked on the each reels on top left corner of the label. For your confirmation we are enclosing herewith the detailed product catalogue of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtificate. Thus, even unreasonable delay could not be attributed on the part of the Customs Authority by the Petitioner.' 22. Explaining the concept of exercise of power in good faith, in AIR 1986 SC 872 - Express Newspaper (P) Ltd. v. Union of India, it was held thus :- '18. The expression 'good faith' has not been defined in the Ceiling Act. The expression has several shades of meaning. In the popular sense, the phrase 'in good faith' simply means 'honestly, without fraud, collusion, or deceit; really, actually, without pretence and without intent to assist or act in furtherance of a fraudulent or otherwise unlawful scheme' (See Words and Phrases, Permanent Edn. Vol. 18-A, p-91). Although the meaning of 'good faith' may vary in the context of different statutes, subjects and situations, honest intent free from taint of fraud or fraudulent design, is a constant element of its connotation. Even so, the quality and quantity of the honesty requisite for Constituting 'good faith' is conditioned by the context and object of the statute in which this term is employed. It is a cardinal canon of construction that an expression which has no uniform, precisely fixed meaning, takes its col ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal & Ors., Justice Venkatachala in his concurring judgment after considering the first decision on the subject i.e. (1976) 3 SCC 167 - Trustees of the Port of Madras v. Amirchand Pyarelal, followed in (1977) 2 SCC 649 - Board of Trustees of the Port of Bombay v. Indian Goods Supplying Co. and (1978) 1 SCC 648 = 1987 (30) E.L.T. 633 (S.C.) Board of Trustees of the Port of Bombay v. Jai Hind Oil Mills Co., in para 66 of the judgment, concluded as under : '66. From the above decisions of this Court it becomes clear that an authority created under a statute even if is the custodian of the imported goods because of the provisions of the Customs Act, 1961, would be entitled to charge demurrages for the imported goods in its custody and make the importer or consignee liable for the same even for periods during which he/it was unable to clear the goods from the customs area, due to fault on the part of the Customs Authorities or of other authorities who might have issued detention certificates owning such fault.' 27. The dichotomy perceived due to two apparently irreconcilable opinion by the Apex Court in Sanjeev Woolen Mill's case (Supra) and Grandslam International's case, (supra) res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the documents produced especially the communication by respondent to its indenting agent and the description of the goods imported which necessitated the detention and testing. The bona fide of Custom Department can be gathered from the fact that 80% of the goods were released by the Custom Authorities without any delay. 29. After the detention certificate was issued by the Custom Authorites, instead of getting the goods released without further delay, a three tier approach was adopted by the respondent i.e. firstly requesting the Shipper and CCI to release the goods without any detention charges/demurrage in view of the detention certificate issued by the Custom Authorities, thereafter writing letters to them expressing inability to get the goods released on paying detention charges/demurrage which were more than the value of the goods and finally getting the goods released on payment without prejudice. This conduct of the respondent resulted in further delay thereby incurring more liability to pay detention charges/demurrage which could have been minimized by promptly getting the goods released. 30. Thus, we find that neither on facts nor on law, the impugned judgment can be su ..... X X X X Extracts X X X X X X X X Extracts X X X X
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