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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 ..... mport of goods i.e. General Air Conditioners Split. The petitioner has declared the value of the goods in question as 2,08,4861.36/- each and total value of Rs. 41,69,722.72/-. Thereafter the custom authorities re-assessed both the bills and redetermined the assemble value including the insurance of identical goods as Rs. 30,93,953/- each, total value of Rs. 61,87,905/-. On 13.11.2018 a show cause notice was issued to the petitioner demanding confiscation under the provisions of Section 111 (d) and 111(m) read with Section 118 of Customs Act, 1962 and also proposed penalty under the provisions of 112 (a) of the Customs Act, 1962. Thereafter the Joint Commissioner of Customs vide order dated 11.12.2018 has ordered for confiscation of the goods in question and imposed penalty of Rs. 4 lakhs. Feeling aggrieved to the said order, the petitioner has preferred an appeal before the Commissioner CGST (Appeals), NOIDA, who by the order dated 23.5.2019 has accepted the claim of the petitioner and set aside the order dated 11.12.2018. Thereafter a letter dated 16.9.2020 was issued to Terminal Manager for implementation of Notification No. 26/2009-CUS(NT) dated 17.3.2009 with regard to wave th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd unless the demurrage charges is paid by the petitioner, the goods cannot be released. He submits that goods imported by the petitioner were directed to be detained and merely issuance of certificate dated 17.6.2019 against both the bills of entries, the goods were not released as the petitioner did not paid the demurrage charges. He further submits that notification no. 26/2009 dated 17.3.2009 is of no aid to the petitioner as in view of the judgment of Supreme Court in the case of Internation Airports Authority of India Vs. Grand Slam Internation and others, 1995 (77) ELT, 753, the benefit cannot be given. He further relied upon the judgement of Apex Court in Shipping Corporation of India Ltd. Vs. C.L. Jain Woolen Mills and others, AIR 2001 SC 1806 and Trustee of Port of Madrass Vs. Nagavedu Lungi and Company 1995(3) SCC 730. He further relied upon the latest judgement of Delhi High Court in the case of Bhavik S. Thakkar Vs. Union of India and others, (W.P. C No. 982 of 2015 and C.M. No. 1736 of 2015 decided on 14.2.2023). He prays for dismissing the writ petition. 7. After hearing learned counsel for the parties, the Court has perused the records. 8. It is not in dispute tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ead with the Regulation 2(b), 5 and 6 of the Regulations of 2009 the customs cargo service provider is responsible for providing storage facilities for the purpose of unloading imported goods and, consequently, is entitled to charge demurrage charges. However, we are of the opinion that the custodian, namely, the service provider-respondent no.4 is not entitled to charge demurrage charges where the goods have been detained, seized or confiscated by the customs department, in view of the terms of condition of the appointment order of respondent no.4 read with Regulation 6(l) of the Regulations of 2009. Reliance by respondent no.4 on the decision in the case of International Airports Authority of India (supra), Shipping Corporation of India (supra), Trustees of Port of Madras (supra) is misplaced, inasmuch as the said decisions are not applicable. At this stage, we may state that the International Airport Authority of India and Trustees of Port of Madras were charging demurrage charges on the basis of Rules and Regulations framed under the Act by which they were being governed. The Supreme Court in that scenario held that there was no embargo upon the custodian, namely Internationa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the counter affidavit clearly appears to be an afterthought. In any case, it does not appear to be fair. Even though, no malafides have been alleged and the petitioner has also not alleged that the goods were detained without any authority of law, we are of the opinion that there is always a presumption in favour of the authorities that it exercises its power in good faith and for public benefit. Admittedly, an application for provisional assessment or for storage of the goods in a warehouse was moved by the petitioner. If the request of the petitioner was not permissible, the said application should have been rejected. Since no orders were passed on the petitioners application, the contention of the respondents as depicted in paragraph 14 and 15 of the counter affidavit clearly appears to be a afterthought. By not passing an order, the competent authority was refusing to exercise its powers which has been granted to him under the Act. By not passing any order, the authority may not have acted malafidely but definitely, his action was not bonafide. It is common knowledge that demurrage charges are exorbitantly high as compared to the rates fixed under Section 63 of the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er charges such as handling or demurrage charges leviable, if any, subsequent to the period 15th January, 2015 till the actual clearance. The writ petition is disposed of. (emphasis supplied by this Court) In the aforesaid case, the Court was of the opinion that the respondent was not entitled to charge any demurrage charge from the goods so detained by the custom authorities. 11. Further in the case of Green Gold Timbers Pvt. Ltd (supra) the Gujrat High Court has held as under:- "5. Thus, the observations made by the Bombay High Court in paragraph-19 clinches the issue. The respondent no.3, as the customs cargo service provider as defined in regulation No.2(1)(b) of the Regulations, is not entitled in law to charge any rent or demurrage on the goods seized or detained or confiscated by the Superintendent of Customs or any other authority as referred to above. 6. This position seems to have been further clarified by the Commissioner of Customs (Export) by way of a public notice No.26/2010 with the further clarification that the customs cargo service providers shall allow the goods on production of a certificate issued from the proper officer certifying such period of seizur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is not permissible as the Regulation uses the expression "shall not charge any rent or demurrage". This, man dates that the third respondent is prohibited from charging any rent or demur rage during the period of detention. This having been certified by the second re spondent, there is no escape from the rigour of Regulation No. 6(1)(1). Thus, the matter is not contractual, but it involves the implementation of a statutory regulation. Therefore, the writ petition filed by the petitioner is maintainable. 9. Insofar as M/s. K. Steamship Agencies Pvt. Ltd., is concerned, the cargo in two containers, have been cleared on 7-1-2017 and remaining two containers on 13-1-2017. As observed in respect of the other matters, after 28-12-2016, within a reasonable time, the containers have been removed. Admittedly, the petitioner is not responsible for detention of the container for the period from 2-12-2016. Therefore, the third respondent shall not be entitled to charge rent or demurrage on the said four containers till it was removed i.e., on 7-1-2017/13-1-2017. 10. For all the above reasons, the writ petitions are disposed of with a direction to the third respondent namely, M/s. Calyx Con ..... 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