9911796707
TMI Blog2016 (2) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... d warehouse charges on the goods seized or detained by the Customs Department. The petitioner was entitled for release of the goods without payment of warehouse charges. We are, however, of the opinion that once a stand was taken by the respondents to release the goods on payment of charges, the petitioner should have got the goods released upon payment of the charges, as demanded by the respondents, by depositing the same under protest and thereafter should have contested the matter. Allowing the goods to remain in the custody of respondent nos. 3, 4 and 5 after 11.04.2014 on the pretext that the petitioner is not liable to pay demurrage charges becomes arbitrary and unjustified especially when the respondents had made their stand clear insisting upon payment of warehouse charges, even though such stand of respondent nos. 3, 4 and 5 was unjustified. The writ petition is allowed and a writ of mandamus is issued holding that the respondents no. 3, 4 and 5 are not entitled to demand warehouse charges on the goods that was initially detained but subsequently released by the Customs authority till 11.04.2014, i.e., the date when the counter affidavit of respondent nos. 3 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st, issued an order dated 03.01.2014 holding that the consignment imported by the petitioner under the bill of entry dated 23.11.2011 was not a Waste Oil and, accordingly, directed the consignment to be released at appropriate value at the time of import of the said goods and, accordingly, dropped the show cause notice. 4. Based on the said order, the petitioner paid appropriate rate of duty and asked for release of the goods. The Assistant Commissioner, Customs, Excise Service Tax issued an order dated 03.01.2014 to the Manager, Central Warehousing Corporation, who was Incharge of the goods to waive the warehousing charges in view of the Handling Of Cargo In Customs Area Regulations, 2009. A reminder was again issued on 29.01.2014 for release of the goods after waiving the warehouse charges. Inspite of a specific order from the Customs authorities to release the goods and to waive the warehousing charges and inspite of letters being written by the petitioner dated 27.01.2014 and 28.01.2014, the goods were not released by the Central Warehousing Corporation or by its service provider World Window Infrastructure Logistics Pvt. Ltd., respondent no.5. The petitioner was left wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rdance with the Act. The said respondent contended that that under Section 45 of the Act they are responsible for safe custody of the goods till it is cleared by the Commissioner of Customs and that under Sections 63 and 68 of the Act, the owner of the goods is liable to pay warehousing charges pursuant to the clearance of the goods. It was also contended that under Section 141 (2) of the Act, the imported goods may be received, handled etc. as may be prescribed and that under Section 157 of the Act regulations can be framed. It was contended that based on the aforesaid provisions, the Regulations of 2009 has been framed. It was contended that under Section 141(2) of the Act since there was no such provision to make Regulations in respect of waiver of charges and, therefore, in the absence of any such provision not enumerated under Section 141(2) read with Section 157 of the Act, the Regulations could not be framed. It was also contended that as per Section 148 read with Section 170 of the Contract Act,1872, the said respondents had a lien on the goods till remuneration were not received and therefore there was a bailor and bailee relationship, which continues till adequate remuner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t length Sri C. L. Pandey, the learned Senior Counsel along with Sri Ashish Dube, the learned counsel for the petitioner, Sri V. V. Gautam along with Sri Sambhu Chopra and Sri Ashutosh Shukla, the learned counsel for the respondent no. 5, Sri Ravi Prakash Pandey, the learned counsel holding brief of Sri M. C. Chaturvedi, the learned counsel for the respondent nos. 3 and 4, Sri Amit Mahajan, the learned counsel for the respondent no. 2 and Sri Krishna Agrawal, the learned counsel for the respondent no. 1. 10. After having heard the learned counsel for the parties at some length, we are of the opinion that the controversy involved in the present case is squarely covered by a decision of this Court in Civil Misc. Writ Petition (Tax) No. 205 of 2015, M/s Continental Carbon India Ltd Vs. Union of India and another, decided on 14th October, 2015. Since the learned counsel for the respondent no. 5 insisted that the said decision is distinguishable, we allowed the learned counsel to argue the matter at length. 11. Section 45 of the Act provides for clearance of imported goods. The said provision is extracted hereunder: 45. Restrictions on custody and removal of imported goods. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been defined under Section 2(43) of the Act which means a public warehouse appointed under Section 57 or private warehouse licensed under Section 58. Such appointments of public warehouse under Section 57 of the Act and licence of private warehouse under Section 58 of the Act is granted by the Commissioner of Customs. 15. Section 63 of the Act provides for payment of warehouse charges at rates fixed under any law by the Commissioner of Customs. For facility, the said provision is also extracted hereunder:- 63. Payment of rent and warehouse charges. - (1) The owner of any warehoused goods shall pay to the warehouse-keeper rent and warehouse charges at the rates fixed under any law for the time being in force or where no rates are so fixed, at such rates as may be fixed by the Commissioner of Customs. (2) If any rent or warehouse charges are not paid within ten days from the date when they became due, the warehouse-keeper may, after notice to the owner of the warehoused goods and with the permission of the proper officer cause to be sold (any transfer of the warehoused goods notwithstanding) such sufficient portion of the goods as the warehouse-keeper may select. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court in Trustees of Port of Madras Vs. K.P.V. Sheikh of Mohd. Rowther and Co. Pvt. Ltd., AIR 1999 SC 1922. 19. In the light of the aforesaid, it is clear that demurrage charges can be levied by the custodian under Section 45 of the Act. 20. The Inland Container Depot (ICD) at Loni has been notified under Section 8 of the Act as the area for loading of goods for export and for unloading of imported goods. The Central Warehouse Corporation has been appointed under Section 45 of the Act by a public notice dated 22.03.2007 as the custodian of imported and exported cargo of this Depot. The appointment is subject to certain terms and conditions. Clause 12 (VII) of the terms and conditions of licence is extracted hereunder: 12. The Custodian shall also take steps to bring about necessary improvement in the infrastructural facilities and other amenities required to be provided to the trade and also to the Customs Staff, as may be necessitated from time to time, consequent upon the growth in the volume of Import and Export Trade handled at the Inland Container Depot. It is further emphasized that the Custodian shall- .................................................. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llect warehouse charges has already been upheld by the Supreme court in Shipping Corporation of India Vs.Jain Woolen Mills, 2001(129) E.L.T. 561 (S.C.) under Section 45 (2) of the Act but when a specific term and condition is imposed upon Cargo Service Provider not to realize the charges of goods detained by the Customs Department, it is no longer open to respondent nos. 3, 4 and 5 to realize warehouse charges and insist that Section 63 of the Act would prevail over Regulation 6(l) of the Regulations, 2009. 24. Reliance placed by the learned counsel for the respondents on the decision of the Supreme Court given in Appeal (Civil) 4593 of 1999, The Printers (Mysore) Ltd. Vs. M.A.Rasheed others decided on 05.04.2003 is of no avail. It only explains the meaning of the words 'subject to'. We are of the opinion that so long as the specific terms and conditions as mentioned in the licence of Respondent nos. 3 and 4 exists, the same is binding upon them as well as upon respondent no.5. It was no longer open for the respondent nos.3, 4 or 5 to insist on warehouse charges pursuant to release of the goods. We are of the opinion that the action of respondents in not releasing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ave got the goods released upon payment of the charges, as demanded by the respondents, by depositing the same under protest and thereafter should have contested the matter. By not getting the goods released, the containers are still in the custody of respondent no. 5. The said respondents are still ensuring safe custody of the consignment. Such continuation of the goods remaining with the respondent nos. 3, 4 and 5 is unwarranted and unjustified and consequently, we are of the opinion that once the stand of the respondents became known to the petitioner pursuant to the filing of the counter affidavit on 20.03.2014 by respondent no.5 and on 11.04.2014 by respondent nos. 3 and 4, further retention of the goods by the said respondents was totally at the risk and peril of the petitioner. 28. It is common knowledge that the warehouse charges are exorbitantly high. Warehouse charges are necessarily kept high in order to ensure quick clearance of the cargo from the customs area and make it unprofitable for exporters or importers to use the Customs area as a warehouse. Thus, it is necessary to levy high rates of warehouse charges to avoid congestion of free movement of loading and unlo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
