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TMI Blog2018 (7) TMI 2300X X X X Extracts X X X X X X X X Extracts X X X X ..... with the applicability of notification dated 27/06/2006, Division Bench of this Court as well as Hon ble Apex Court, the action of the respondent authorities in not permitting the petitioner to load the goods, held to be illegal - By not permitting the petitioner to export the goods, at no fault of the petitioner, he was paying ground rent/ demurrages to respondent Nos.4 and 5, whose containers were used for storing the goods for export. Even though specific directions were issued, the respondent authorities were not permitting the petitioner to export the consignments. Though specific request was made by the petitioner and petitioner had to incur huge expenses towards ground rent/ demurrages towards such attitude of the officers and when the action of respondent authorities from the beginning was declared illegal, and are required to be deprecated and are bound to face the consequences. In case of SHIPPING CORPN. OF INDIA LTD. VERSUS CL. JAIN WOOLEN MILLS [ 2001 (4) TMI 83 - SUPREME COURT ] the Hon ble Apex Court has held that even confiscation of goods, which ultimately find out to be unsuccessful, the Court has held the same as illegal, parties would be entitled for demurr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 45 of the Customs Act 1962 which has been held illegal by this Hon ble Court in Spl.C.A.No.14642 of 2006 by judgement and order dated 1.9.2006; (B) Your Lordships may be pleased to issue appropriate writ of mandamus or any other suitable writ, order or direction which the Hon ble Court may deem fit, just and proper, directing respondents No.1 and 2 to make payment to Respondent No.3, 4 and 5 as the containers have already been cleared by the Customs Department under section 51 of the Act for shipment in the vessel from Kandla Port on 23/24th of June,2006, however, on account of wrong interpretation of Notifications by respondents No.1 and 2, made illegal demand of detention, demurrage and ground rent charges from the petitioner, which otherwise the petitioner is not liable to pay and consequently the respondent No.3 restrained Respondent No.4 and 5 from loading the containers in the vessel and insisted the payment of detention, demurrage and ground rent charges from respondents No.4 and 5 which is arbitrary, illegal and against the provisions of law for the reasons stated in the memo of petition; (C) Your Lordships may be pleased to issue appropriate writ of mandamus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the Hon ble Apex Court and containers were lying with the respondent authority since June,2006 and the petitioner had paid huge amount to the agencies towards container charges and demurrage, the cargo was called back by the petitioner and was sold in local market. Though there was no fault of the petitioner, he had to pay huge amount towards container charges and demurrage and therefore, the petitioner has moved an application for amendment being Civil Application No.4309 of 2007, which came to be allowed vide order dated 04/10/2007 and ultimately several grounds have been added in the main writ petition and following prayer was added in the writ petition: (CC)Your Lordships may be pleased to issue appropriate writ of mandamus or any other suitable writ, order or direction which the Hon ble Court may deem fit, just and proper, directing the respondents No.2 and 3 both jointly and severally to pay Rs.62,85,667/which was paid by the applicant to M/s.Intermark Shipping Agencies Pvt Ltd and M/s.Saturnship Agencies Pvt Ltd towards demurrage, container charges etc, in the interest of justice. 3. Pursuant to the Notice issued by this Court, respondent No.2 has filed an A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on and held that Notification dated 27/06/2006 would be applicable from the date of issuance of the said notification and those consignments, which have been cleared by the customs department prior thereto, would not be covered under the said notification and therefore, accordingly allowed the aforesaid petition on 01/09/2006. While disposing of the said petition, authorities were directed to permit the petitioner to load the cargo, which is lying at Kandla Port area for export forthwith. The petitioner thereafter approached the Traffic Manager of Kandla Port Trust respondent No.3 with the order of the Court and requested him to load the goods in view of the urgency since the petitioner is paying huge rent to respondent Nos.4 and 5 from which the containers were hired and the petitioner was paying huge ground rent for the same. The respondent did not act as per the direction and therefore, the present petition came to filed and as stated hereinabove and several prayers were made at the time of filing of the petition. 5. The aforesaid decision of Division Bench of this Court was challenged by the respondent authorities before Hon ble Apex Court. Though there was no order passed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent by his another Notification dated 04/07/2006 tried to clarify that the decision of government prohibiting certain items for export was announced and got widely published on 22/06/2006, the same would be applicable from the said date and not from the date of actual publication i.e. 27/06/2006, has been held illegal by Division Bench and confirmed by the Hon ble Apex Court. He would submit that the petitioner was not at fault at any point of time since he had got all clearance certificate for export from the customs department and the authority under the guise of Notification, did not permit the petitioner to export 67 containers for considerable long period. He would further submit that even after the pronouncement of judgement by Division Bench, by which, directions were issued to the respondents, the authority was not permitting the petitioner to export the containers. There was no alternate option with the petitioner, but to call back the entire goods of 67 containers, so that he may not have to pay demurrages to respondent Nos.4 and 5 and all the goods were called back and sold the same in the local market. However, at no fault of the petitioner, a huge amount of ground r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of his arguments. 8. I have heard learned advocates appearing for the respective parties. So far as the facts are concerned, there is no dispute that the petitioner intended to export the goods of 87 containers from Kandla Port Trust. As per the provisions of The Customs Act, the petitioner after following the procedure, ultimately got clearance certificate for all 87 containers, which were issued by the Customs Officer under the provisions of Sections 50 and 51 of the Customs Act, before 27.6.2006. Since the shipment was not available (as claimed by the petitioner in the memo of the petition and not denied by the respondent) remaining 67 containers could not be physically exported beyond the territory of India and therefore, while dealing with the applicability of notification dated 27/06/2006, Division Bench of this Court as well as Hon ble Apex Court, the action of the respondent authorities in not permitting the petitioner to load the goods, held to be illegal. By not permitting the petitioner to export the goods, at no fault of the petitioner, he was paying ground rent/ demurrages to respondent Nos.4 and 5, whose containers were used for storing the goods for export. 9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s are paid. Such rights accruing in favour of the appellant cannot be nullified by issuance of a certificate of detention by the customs authorities unless for such issuance of detention certificate any provisions of the Customs Act authorise. We had not been shown any provisions of the Customs Act, which would enable the customs authorities to compel the carrier, not to charge demurrage charges, the moment a detention certificate is issued. It may be undoubtedly true that the customs authorities might have bona fide initiated the proceedings for confiscation of the goods which however, ultimately turned out to be unsuccessful and the Court held the same to be illegal. But that by itself, would not clothe the customs authorities with the power to direct the carrier who continues to retain a lien over the imported goods, so long as his dues are not paid, not to charge any demurrage charges nor the socalled issuance of detention certificate would also prohibit the carrier from raising any demand towards demurrage charges, for the occupation of the imported goods of the space, which the proprietor of the space is entitled to charge from the importer. The importer also will not be enti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igher value and not soft waste. On account of nonrelease, the imported goods incurred heavy demurrage charges but the customs authorities themselves gave an undertaking before the High Court that in the event the goods are found to be synthetic waste, then the Revenue itself would bear the entire demurrage and container charges. Further the Chief Commissioner of Customs, later had ordered unconditional release of goods and yet the goods had not been released. It is under these circumstances and in view of the specific undertaking given by the customs authorities, this Court held that from the date of detention of the goods till the customs authorities intimated the importer, the importer would not be required to pay the demurrage charges. But in that case even subsequent to the orders of the customs authorities on a suit being filed by one of the partners of the importerfirm, an order of injunction was issued and, therefore it was held that for that period, the importer would be liable for paying the demurrage and container charges. The judgment of this Court in Sanjeev Woolen Mills, therefore, was in relation to the peculiar facts and circumstances of the case and the Court had cl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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