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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 ..... issuing an order u/s.5 of the Customs Act,1962 in view of decision rendered by Division Bench of this Court in Special Civil Application No.14642 of 2006, by which, Custom Authority was directed to permit the petitioner to export the consignments, which have already been cleared by the Customs Authorities on 23-24/06/2006. Following prayers have been made at the time of filing of petition: "11(A) 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 respondent No.1 to issue detention certificate in favour of the petitioner as the containers have been detained on account of the statutory order issued by respondent No.1 under 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 bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petitioner and subject to providing bank guarantee of the illegal demand made by the respondents No.1 and 2 with the rider that it is the responsibility of the Respondent No.1 to make payment of demurrage, detention and ground rent charges because the goods are in perishable nature and worth Rs.6 Crores is stuffed in the containers and it has been happened on account of their wrong interpretation of the notifications because and for the reasons stated in the memo of the petition and in the interest of justice and fairness of things; (E) Any other reliefs, which is deemed fit and proper by Your Lordships may please be granted in the interest of justice." 2. Since the decision dated 01/09/2006 passed by the Division Bench was challenged before 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 amend ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Meanwhile, exercising power under section 5 of Foreign Trader (Development and Regulation) Act,1992, respondent No.2 issued a Notification on 27/06/2006 and prohibited export of various goods for a period of six months from the date of issuance of such notification. In view of the said Notification, the goods lying in those 67 containers were amongst prohibited goods, the authority did not permit to export those 67 containers, though Clearance Certificate was issued by the Custom Authority. The petitioner being dissatisfied with the action of the respondent authorities, filed a writ petition being Special Civil Application No.14642 of 2006 and challenged the said Notification. Division Bench of this Court allowed the said petition 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 Kan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act,1992. He would submit that Director General of Foreign Trade, while issuing Notification dated 27/06/2006 being a foreign trade policy added certain goods as prohibitory articles in the Schedule of export and import items, which includes the goods which the petitioner intended to export. However, had not clarified about the goods, which have already received clearance certificate under sections 50 and 51 of the Customs Act. So far as the petitioner is concerned, all 87 containers had received clearance certificate for export, however only 20 containers were physically exported and remaining 67 were lying in the containers of respondent Nos.4 and 5, for which, the petitioner had to give ground rent and demurrage. The respondent 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Regulation) Act,1992 empowers the Central Government to formulate and annoyance the Foreign Trade policy and accordingly exercising the power under the same, notification was issued on 27/06/2006. Since a wide publicity was given on 22/06/2006, the claim of the petitioner about having right to export the goods would not be made applicable though clearance certificate was issued by the competent authority. He would submit that since this is a policy decision by the Central Government, officers are bound to comply the same and have no power to interfere the same and therefore, the petitioner is not entitled for any relief as prayed for. Neither further arguments were advanced nor had relied upon any decision in support 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n whose favour the Bill of lading has been consigned and who has stored the goods in his custody, is governed by the contract between the parties. Section 170 of the Indian Contract Act engrafts the principle of bailee's lien, namely, if somebody has received the articles on being delivered to him and is required to store the same until cleared for which he might have borne the expenses, he has a right to detain them until his dues are paid. But it is not necessary in the case in hand to examine the common law principle and the bailee's lien inasmuch as the very terms of the contract and the provisions of the Bill of Lading, unequivocally conferred power on the appellant to retain the goods, until the dues 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 cust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Internationals case, 1995(3) SCC 151, clearly comes to the aforesaid conclusion with which we respectfully agree. 8. We have also examined the decision of this Court in Union of India vs. Sanjeev Woolen Mills, 1998(9) SCC 647 and we do not find any apparent inconsistency between the decisions of this Court in Grand Slam and that of the Sanjeev Woolen Mills. In Sanjeev Woolen Mills, the imported goods were synthetic waste (soft quality), though the customs authorities detained the same, being of the opinion that they were prime fibre of higher 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 circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Corporation, if an application is filed by the customs authorities to waive the demurrage charges. The appeal is disposed of accordingly." 11. Similarly in unreported decision rendered in the case of Unisilk Ltd. (supra), Division Bench of this Court has considered the same as having similar facts and held that persons would be entitled for demurrages. 12. So far as submission made by learned advocate Mr.Divyeshwar about amending the prayers and demanding the demurrage at later stage is concerned, the same is to be discarded since the same was carried out in the year 2007 and was not challenged by the respondent authorities at the time of hearing of the civil application and subsequent to passing the order of amendment. 13. Hav ..... X X X X Extracts X X X X X X X X Extracts X X X X
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