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TMI Blog2023 (12) TMI 1181X X X X Extracts X X X X X X X X Extracts X X X X ..... d thereafter order was passed by the Settlement Commissioner imposing the penalty of Rs. 2 lakh and fine of Rs. 1 lakh in lieu of confiscation of imported goods. On the said premise, it was held that Settlement Commissioner is not the Court and the order was passed holding that the waiver cannot be granted to the parties therein. However in the case in hand, the appellate court specifically passed the order in favour of the petitioner holding that the disclosed value was correct - the respondent authority cannot charge the demurrage charges, therefore, no demurrage charges can be charged or demanded from the petitioner. The petitioner is granted relief to the extent that it would be open for the petitioner to clear off the goods without payment of demurrage charges subject to payment of other charges subsequent to the period of 17.9.2020 till the date of actual clearing off the goods in question - Petition disposed off. - Hon'ble Piyush Agrawal, J. For the Petitioner : Anurag Mishra,Pragya Pandey For the Respondent : A.S.G.I.,Ashok Singh,Pawan Kumar Rao,Rajshekhar Srivastava ORDER 1. Heard Ms. Pragya Pandey for the petitioner and Mr. Pawan Kumar Ra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r Corporation of India Limited for waiver of detention charges, the Container Corporation of India Limited has rejected the waiver request vide email dated 1.12.2020 and intimated the petitioner on 25.1.2021 to pay the said charges in order to release the goods, failing which the goods will be sold through E-auction without any further notice to the petitioner. Hence the present writ petition. 4. Learned counsel for the petitioner has submitted that goods were imported after due declaration of its value but the custom authorities had re-determined the value of two bill of entries and same has been confirmed by the original order dated 11.12.2018. He submits that the petitioner has challenged the said order before the Commissioner, who has allowed the appeal by order dated 23.5.2019 and found that there is no reason for rejection of transaction value as declared by the petitioner and said order has attained finality. He submits that since the goods in question was detained by the custom authorities which was beyond his control the goods cannot be cleared therefore, the authorities cannot legally be charged any demurrage upon the petitioner. 5. In support of his contention, lea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal was passed imposing penalty of Rs. 4 lakh upon the petitioner against which the petitioner has filed an appeal before the Commissioner Custom and CGST (Appeal) NOIDA, which was allowed vide order dated 23.5.2019. The order of appellate authority has attained finality as the respondent authority did not challenge the said order. Thereafter detention certificate was issued on 17.9.2019 directing the authorities not to charge the rent or demurrage charge for the said period but vide e-mail dated 1.12.2020 rejected the waiver request of the petitioner. 9. It is not in dispute that goods were detained and re-valuation was done and after re-valuation the petitioner preferred an appeal which was decided in favour of the petitioner by the order dated 23.5.2019. This order has become final by which the disclosure made by the petitioner was treated to be correct and thereafter the petitioner deposited custom duty on the declared transaction value and to take release the goods. After deposit of the custom duty, the custom authorities issued detention certificate dated 17.9.2019 for both the bill of entries and directed the Container Corporation of India not to take any rent on the good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge demurrage charges on the goods seized or detained or confiscated by the customs department. We are, therefore, of the opinion that respondent no.4 had no authority of law to charge demurrage charges on the goods seized or detained or confiscated by the customs department. The question which now arises is, whether the customs department had seized or detained or confiscated the imported goods which landed in the customs area. According to the stand of the custom department, they had neither seized nor detained nor confiscated the goods and had only referred the matter to the MOEF to seek clarification as to whether the goods so imported were hazardous or not. Upon receiving the clarification from the MOEF, the duty was assessed at the earliest opportune moment and, therefore, they are not responsible for any delay. On the other hand, we find that the petitioner issued letters dated 16th September, 2014 and 19th September, 2014 requesting the Commissioner of Customs for clearance of the goods on provisional assessment against test bonds. No orders were passed by the customs authorities on these applications nor the goods were released on provisional assessment. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods in the customs area. Consequently, permitting the cargo to remain in the customs area for months on the pretext of seeking a clarification from the MOEF with regard to the nature of the goods being hazardous or not appears to unjustified and arbitrary, especially when the petitioner made a specific application for shifting the goods to a warehouse in terms of Section 49 of the Act. We are, therefore, of the opinion that by not passing any orders on the petitioners application for provisional assessment or by not passing any orders on the application of the petitioner under Section 49 of the Act for storage of the imported goods in a warehouse pending clearance would amount to detention of the goods. Goods unloaded in the customs area are kept under the direct control of the customs department and no goods can be removed either by the custodian or by the importer until the goods are cleared of customs duty. Section 34 of the Act clearly debars the importer from unloading goods in any other area except under the supervision of the customs authorities. In the light of the aforesaid, it is not necessary to dwell upon the provisions of Section 49 of the Act and th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d is hereby allowed. 9. The amount of Rs.7,64,934=00 recovered by the respondent no.3 towards the demurrage of the goods of the writ applicant shall be refunded within a period of four weeks from the date of receipt of the writ of this order. 12. Further Madras High Court in the case of Balaji Dekors (supra) has held as under:- 8. The second respondent, in no uncertain terms, has certified that the goods were detained by the SIIB from 2-12-2016 to 27-12-2016 and issued an order on 28-12-2016 that the custodian (third respondent) shall not charge rent or demurrage for goods under detention. Thus, the third respondent cannot interpret the said communication, as the Regulations clearly provide that the custodian cannot charge any rent or demurrage on the goods detained by the second respondent. However in the case of W.P. No. 6452 of 2017, which concerns, M/s. Calyx Container Terminals, goods in question have been removed on 6-1-2017. Therefore, a levy is sought to be made for the period from 28-12-2016 to 6-1-2017. In my considered view this is unreasonable because after the order was passed on 28-12-2016, effective steps have been taken by the petitioner to clear the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... direction shall be complied with within a period of two weeks from the date of receipt of a copy of this order and the respective third respondent shall ensure full and faithful compliance of the above direction. No costs. 13. Learned counsel for the respondent heavily relied upon the recent judgement of Delhi High Court in the case of Bhavik S. Thakkar (supra). The case is of no help to the respondent as in the aforesaid case, the goods were seized and detained and at the time of confiscating the goods, time was granted to pay the dues but the same was not paid thereafter order was passed by the Settlement Commissioner imposing the penalty of Rs. 2 lakh and fine of Rs. 1 lakh in lieu of confiscation of imported goods. On the said premise, it was held that Settlement Commissioner is not the Court and the order was passed holding that the waiver cannot be granted to the parties therein. 14. However in the case in hand, the appellate court specifically passed the order in favour of the petitioner holding that the disclosed value was correct. The Supreme Court judgements are relied upon by the counsel for the respondents have already been considered in the case of M/s Contine ..... X X X X Extracts X X X X X X X X Extracts X X X X
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