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TMI Blog2016 (10) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner. (d) Award any other relief, which is found just and proper in favour of the petitioner." 2. Counsel for the petitioner contended that the petitioner is a sole proprietorship firm of Shri Brij Kishore Toshniwal and is engaged in the business of rough gemstones, cutting and polishing thereof, trading in gemstones and export of finished gemstones. In the normal course of its business, the petitioner had placed order for import of rough precious stone sapphire (yello) and rough semi precious stone aquamarine to M/s A. V. Jewels Co. Ltd. Bangkok, Thailand. In pursuance of the orders passed by the petitioner M/s A.V. Jewels Co. Ltd. sent an invoice bearing no. AVJ-04/96 dated 9.10.1996, a copy of which is enclosed herewith and marked as Annexure-1. On receiving the invoice, petitioner submitted bill of entry no. 1487/96 dated 24.10.1996 for clearance of rough precious stone yellow sapphire weighing 1138.98 gm and rough semi precious stone aquamarine weighing 1810.00 gm, total valued at Rs. 3,17,186/- CIF at the Air Cargo Complex, Jaipur. 3. However, on examination of the parcel, it was found that the rough of yellow sapphire also contained, 224 gm yellow sapphire cut and p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... toms port or customs airport of coastal port for unloading and loading of goods and specify the limits of the customs area. Section 33 prohibits unloading of imported goods at any place other than the place approved under Section 8(a) of the Act. Section 34 provides that the imported goods shall not be uploaded from any conveyance except under the supervision of the proper officer. Section 45 provides for clearance of imported goods. The same provision may be extracted herein below in extenso : "Section 45. Restrictions on custody and removal of imported goods: (1) Save as otherwise provided in any law for the time being in force; all imported goods, unloaded in a customs area shall remain in the custody of such person as may be approved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. (2) The person having custody of any imported goods in a customs area, whether under the provisions of sub- section (1) or under any law for the time being in force - (a) shall keep a record of such goods and send a copy thereof to the proper officer: (b) shall not permit such g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontrol over the imported goods and without the permission of the customs authorities, the goods cannot be cleared. But at the same time, there is no provision, in the Customs Act, conferring the power on the Customs Authorities to prohibit or injunct any other authority where the imported goods are stored from charging the demurrage charges for the services rendered for storing the imported goods. We are not concerned in the present case with the provisions of either the Major Ports Trust Act or International Airport Authorities Act, as the imported goods had not been stored either in any Major Port or in the international air cargo. It may however be necessary to examine some of the provisions of the Bills of Lading Act as well as the Contract Act, since the claim of both, the Shipping Corporation and Container Corporation, charging demurrage for the space occupied for the goods, not being released, is on account of the contract between them. Under the Indian Bills of Lading Act, 1956, every consignee of goods, named in a Bill of Lading and every endorsee of a Bill of Lading, is vested with absolute right over the goods. The Bill of Lading is a well known mercantile document of ti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es are higher, the Carrier may collect the additional amount from shipper or consignees. The Carrier shall have a lien on the Goods and any documents relating thereto for all sums payable to the Carrier under the contract (including without limitation unpaid freight and dead freight upon any portion of the Goods covered by the Shipping Order granted in respect hereof which may not have been shipped) and the General Average contribution to whomsoever due and for the cost of recovering the same and for that purpose shall have the right to sell the Goods by public auction or private treaty without notice to the Merchant. The Merchant shall indemnify the Carrier against all and any costs incurred by the Carrier in exercising his rights under this clause." The expression "Carrier" under the definition clause in the Bill of Lading means, the Shipping Corporation of India Limited and/or associated company on whose behalf the Bill of Lading has been signed. 7. Before examining the correctness of the rival submissions, one thing is crystal clear that the relationship between the importer and the carrier of goods in whose favour the Bill of lading has been consigned and who has stored th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with the permission in writing of the proper officer of the customs department and in exercise of such power when customs authorities initiate adjudication proceeding and ultimately confiscate and levy penalty, when such order is struck down and a detention certificate is issued, the said issuance of detention certificate would come within the expression "otherwise dealt with" used in Section 45(2)(b), and therefore, the proprietor of the space would be bound not to charge any demurrage charges. We are unable to accept this contention inasmuch as the expression "otherwise dealt with" used in Section 45(2)(b), in the context in which it has been used, cannot be construed to mean, it authorises the customs officer to issue a detention certificate in respect of the imported goods, which would absolve the importer from paying the demurrage charges and which would prevent the proprietor of the space from levying any demurrage charges. Having scrutinized the power on the customs authorities to prevent the proprietor of the space from levying the demurrage charges and, thereby absolving the importer of the goods from payment of the same. In fact the majority decision in Grand Slam Interna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been released, the impugned order and direction dated 18-1-1999, cannot be held to be infirm in any manner. In the absence of any provision in the Customs Act, entitling the customs officer to prohibit charges for non-release of the goods is in accordance with the terms and conditions of the contract and as such would be a valid levy. The conclusion of the High Court to the effect that the detention of the goods by the customs authorities was illegal the demurrage charges in the absence of any provision in the Customs Act, absolving the customs authorities from that liability. Section 45(2)(b) of the Customs Act cannot be construed to have clothed the customs authorities with the necessary powers, so as to absolve them of the liability of paying the demurrage charges. In the aforesaid premises, we see no infirmity with the directions given by the Delhi High Court on 18-1-1999. the goods in question, having already been directed to be released, without the payment of the demurrage charges, the importer must have got the goods released. Having regard to the fact situation of the present case, it would be meet and proper for us to direct the Shipping Corporation and Container Corpora ..... X X X X Extracts X X X X X X X X Extracts X X X X
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