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TMI Blog1979 (9) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground that the detention of the goods during that period was due to the fault of the appellants' clearing agents and that therefore the detention certificate could not be issued for that period. The appellants thereafter moved this court for the issue of a Writ in the nature of mandamus directing the first respondent, the Assistant Collector of Customs, to issue the detention certificate with respect of the consignment for the period for which the certificate was refused by the Customs authorities, on the ground that the detention of the consignment during that period was not due to the default committed by the appellants or their clearing agent. Though the said writ petition was admitted and rule nisi was issued, Koshal J. before whom the matter came up for final disposal dismissed the same following a Division Bench decision of this court in Collector of Customs v. M.P. Works, AIR 1977 Mad 61, which had held that there is no statutory or other public duty cast on the Customs authorities to issue a detention certificate. The decision of Koshal J. has been challenged in this writ appeal. 2. The appellants even at the admission stage questioned the correctness of the Bench dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Collector of Customs v. M.P. Works, AIR 1977 Mad. 61, there was a licence for the import of pigment dye-stuff and on the basis of the import licence paper bags of powdered whitening were imported and the bill of entry was filed for clearing of consignment. When the consignment was examined by the Customs authorities, it was found that the goods imported are not the licensed items and therefore, a show cause notice was issued to the importer as to why the goods imported should not be confiscated. The importer gave an explanation to the show cause notice. The Customs authorities were not satisfied with the explanation and referred the matter for the opinion of the Chemical Examiner. The examination of the goods involved some delay and ultimately an order of adjudication followed whereunder the import of the goods were held to be unauthorised and against the import trade regulations. However, taking note of certain extenuating circumstances, the goods were allowed to be cleared as a special case. But the Port Trust authorities called upon the importer to pay demurrage charges for the detention of the goods during the period between 10-1-1967 and 12-4-1967. The importer resisted the cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... certificate. A detention certificate is given in order to confer an advantage on the consignee to clear his goods at a reduced rate of demurrage charges. These rules are not enforceable under any statute and no public duty is cast on the Customs authorities. As already pointed out, Rules 13(a) and (b) that are found in the scales of rates chargeable by the Port Trust are in the nature of contract between the parties and cannot be enforced by the issue of a Writ of mandamus. We do not see any basis for the issue of a Writ of mandamus directing the Customs authorities to issue a detention certificate. Even according to Rules 13(a) and (b), to which the Customs authorities are not direct parties, the Customs authorities need not issue a certificate unless the delay is not attributable to any fault or negligence on the part of the importers". 6. The further reasoning given by the Bench in support of its view that no public duty is cast on the Customs authorities to issue a detention certificate is that the goods imported in that case are contraband goods and therefore there is no equity or any right on the part of the consignee to obtain a concession in the payment of demurrage char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty is cast on the customs authorities to examine and conduct the test required without undue delay. The right to detain the goods under Section 45 and the right to conduct the necessary test and examination of the goods without undue delay under Section 17 imposes a corresponding duty on the Customs authorities to issue a detention certificate if there is undue delay on the part of the customs authorities. That the detention certificate has necessarily to be produced before the port trust authorities for grant of concessional rate of demurrage is clear from the rules framed by the Port Trust authorities under Section 42 of the Port Trust Act. Rules 13(a) and (b) of the rules dealing with the scales of rates of demurrage charges specifically provides for payment of demurrage at a concessional rate if the goods are detained by the Customs authorities for customs purposes. Rule 13(a) specifically says that periods during which goods are detailed by the Collector of Customs for examination under Section 17(3) and (4) and for chemical test under Section 144 of the Customs Act, 1962, other than the ordinary processes of appraisement and certified by the Collector of Customs to be not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Division Bench in Collector of Customs v. M.P. Works, AIR 1977 Mad. 61, cannot be decisive on the question as to whether the Customs authorities are under a duty to issue a detention certificate or not. Even assuming that the public notice is in any way relevant, the terms of the public notice appears to contemplate a duty on the part of the Customs authorities to issue a detention certificate. It is true that paragraph 9 of the public notice states that detention certificates are not granted under any of the provisions of the Customs Act so that a refusal by an officer of customs for the grant thereof is not appealable under the Customs Act, though it is open to the party to make representation against any decision to the next higher authority. The above paragraph, however, indicates that the grant or refusal of a detention certificate by the Customs authorities is a decision and the party affected can make his representation against such a decision to the next higher authority. lt is no doubt true that the issue of a detention certificate is not under any of the provisions of the Customs Act and it is on that basis paragraph 9 says that it is not a duty contemplated by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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