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TMI Blog2017 (8) TMI 207X X X X Extracts X X X X X X X X Extracts X X X X ..... td. 2. Admit. 3. The following question of law is framed for consideration: Whether the CESTAT was justified in holding that the Respondent was not liable to pay rent/warehousing charges in view of the fact that the ownership of the goods remained with it? 4. The facts leading to the filing of the present appeal are that the Respondent imported 40 containers of Aluminium/Copper scrap. When the goods were examined by the Department they found that there was a grossly erroneous declaration of weight and description of the goods. The seizure effected on 7th August, 2001 was of goods valued at Rs. 14,59,101. Additionally, from the premises of the Respondent, goods valued at Rs. 145.72 lakhs and Rs. 395.22 lakhs were seized. Following the in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 2015, set aside the order of both the Assistant Commissioner as well as Commissioner (Appeals). The operative portion of the impugned order reads thus: "I have gone through the adjudication order. In adjudication order, the appellant is asked to pay redemption fine, penalties and the duty applicable on the goods in question. The appellant has paid the same, therefore, the goods were required to be released to the appellant on payment of the amounts confirmed as per adjudication order. The adjudicating authority has not passed any order for payment of rent by the appellant for the period of seizure of goods. In these circumstances, the appellant is not liable to pay rent. As the appellant has paid an amount on account of rent in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... CA, they may have certain discretionary powers. But even these have to be exercised reasonably and within the ambit of the CA. In no instance can they perform their adjudicatory functions outside the scope and ambit of the enumerated powers under the concerned statutes. 13. In the context of the present case, where refund of a sum paid as warehousing charges is sought by an importer, the authority to whom the application is made will first and foremost, have to examine under what provision of the law such a request is made and whether such a request can in fact be entertained. Significantly, in the present case while dismissing the Respondent's appeal, the Commissioner (Appeals) noted that the Respondent failed to point out the provision o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se charges. Significantly, Section 73 of the CA, the cancellation of the warehousing bond is conditional upon payment of "all amounts due on account of such goods." The expression "all amounts" is obviously not restricted to the customs duty, penalty, fine etc. It would include the warehousing and/or demurrage charges. Section 141 of the CA states that goods in the customs area would be subject to the control of the officers of Customs in such manner as may be prescribed. None of these provisions mention anything about the owner seeking refund of warehousing charges. 16. Indeed there appears to be no specific provision in the CA or the rules thereunder which contemplates refund of warehousing charges. The Court has also not been shown any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recting the carrier or the owner of the container to waive the charges even where an order of confiscation or levy of penalty is ultimately held to be illegal by the courts. iv. The only option is for the Central Government to make a request to the owner of the container or the space where the goods were stored to waive demurrage charges and if it is so conceded then to that extent the importer would be able to get some relief." 18. In S.K. Metal & Co. (supra), the Court also took note of the decision of this Court in Trip Communication Pvt. Ltd. v. Union of India (2014) 302 ELT 321 (Del), in which after analysing the Handling of Cargo under Customs Area Regulations, 2009 the Court held that it is only in cases "where on conclusion of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e adjudicating authority in the first place directing the Respondent to pay the warehousing charges. 20. Mr Santhanam then contended that in the present case the warehousing of the imported goods was itself illegal since it was without any application made by the Respondent. It was the unilateral decision of the Customs authorities. Therefore, the respondent paid those charges under protest. He contended that since the warehousing charges were illegally collected from it, the Respondent cannot be without a remedy. 21. In the present appeal the Court is concerned with the question whether the CESTAT could have allowed the prayer of the Respondent for refund of the warehousing charges. The Court finds that the said question has to be answer ..... X X X X Extracts X X X X X X X X Extracts X X X X
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