9911796707
TMI Blog1987 (12) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... of the goods. 2. The undisputed facts leading to the filing of the present petition are that the petitioners who are engaged in import and export of diverse items had imported goods described as Haemodialyser Accessories (Outlet Venous sets) from Hongkong through its foreign supplier M/s. S. Framjee Co. Ltd. This import was effected by the petitioner under Open General Licence and was stated to be covered by Item No. 16 of List No. 2 of Appendix 6 of the Import Export Policy, 1985-88 as amended upto date and not liable to payment of duty in view of Notification No. 208/81 covered by item at Sl. No. 8 of List B, dated 22nd September, 1981. It is averred in the petition that vide letter dated 29th May, 1986 Air India authorities intimated the petitioners that the said cargo in question had landed at Delhi airport and this letter was received by the petitioners on 31st May, 1986 and within the stipulated period of 10 days the petitioners presented the Bill of Entry No. 28929 on 10th June, 1986 for clearance of the said goods. The goods were not cleared as certain clarifications were sought from the petitioners which were furnished. However, the Deputy Collector of Customs did n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the option under Section 49 of the Act. Hence, pleading that the act of the respondent No. 1 in refusing to release goods without waiving demurrage charges is violative of fundamental rights of the petitioners enshrined in Article 19 of the Constitution of India and is wholly illegal and hence the aforesaid writ of Certiorary and Mandamus were prayed for. 4. Respondent No. 1 has contested this petition and a counter affidavit has been filed by Shri K.S. Rajan, Deputy Director of respondent No. 1. In this affidavit a mention has been made to various provisions of the International Airport Authority Act, 1971 and to the regulations framed thereunder and also to the directives issued by respondent No. 1 with regard to remission/waiver of demurrage charges and has asserted that in view of the said provisions the demurrage charges could not be waived as the delay in clearing the goods by Customs authorities did not pertain to any ITC formalities but the delay occurred because there was a dispute regarding the tariff classification of goods inter alia it was also pleaded that in order to avoid incurring huge demurrage charges the petitioners could have sought permission under Section 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Authority Act, 1971. Preamble of the Act shows that this act has been framed for the Constitution of an authority for the management of certain airports whereon international air transport is operated and the matters connected therewith. Under Section 16 of the Act the said authority inter alia has to be established as per clause 'D' Warehouses at the Airports for the storage or processing of the goods. Under Section 37 of the Act Authority can make regulations as per clause 'D' regarding the storage or processing of goods in any warehouse established by authority and fixing the charges for such storage or processing. So respondent No. 1 is an independent statutory body constituted to manage the 'Aerodromes and is not subordinate to any other statutory body like the Customs authorities in any manner. The said authority has framed regulations providing for the charges to be levied for storage of the goods and regulation No. 6 empowers the Chairman of respondent No. 1 in its discretion for reasons to be recorded to waive the storage charges for goods in deserving cases. On or about 10th December, 1979 certain directives have been issued in this connection and the clauses 2, 3 and 4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 45 of the Indian Customs Act, 1962 all imported goods unloaded in the customs area are to remain in the custody of such officer as may be approved by the Collector of Customs unless they are cleared for home consumption. The person having custody of imported goods in customs area has to keep record of such goods and send a copy thereof to the proper officer and shall not permit such goods to be removed from the customs area or otherwise deal with and part with custody except in accordance with permission in writing of the proper officer. It is undisputed fact that the goods in question are being kept in custody of the respondent No. 1 by virtue of Section 45 of the Customs Act, 1962 and in view of Section 45(2)(b) of the Customs Act, 1962 respondent No. 1 would not permit such goods to be removed except in accordance with the permission in writing of the proper officer. 8. It has been argued vehemently by learned Counsel for the petitioner that in view of the provisions of Section 45 of the Customs Act the respondent No. I is an agent of the Customs Authorities and respondent No. 1 is bound by the orders issued by Customs Authorities for release of the goods and so the d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d or not and if so to what extent, keeping in view its rules and regulations. Obviously, respondent No. 1 being a statutory body cannot possibly, arbitrarily act and if it acts arbitrarily the Court has power to set right any such wrongful act of respondent No. 1. As a matter of fact, there is no provision under the Customs Act and the rules to enable the Customs Authorities to issue any detention certificate. The detention certificate is obviously issued in view of the directives issued by the respondent No. 1 as reproduced above. However, Counsel for the petitioners has brought to my notice the judgment given in CCP-97/87 M/s. Trans Asia Carpets Ltd. v. Shri S. Mukhopadhyay decided on 28th July, 1987 by Division Bench of this Court in which these directives of respondent No. 1 and the provisions of Section 45 of Indian Customs Act came up for consideration. In the cited case also under the orders of the Court made in C.W. No. 2248/86 a detention certificate was issued in which the cause of detention given was that delay has occurred due to bona fide operation of the ITC formalities and the Bombay Port Trust authorities had refused to honour this certificate on the ground that it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide dispute regarding the import of the goods. Once that dispute is settled only thereafter the question arises whether the goods are liable to payment of any duty or are exempt from payment of any duty. Therefore, it has to be held that there were bona fide disputes with regard to the import of the goods as to whether they have been validly imported under Open General Licence or a special licence was required for import of these goods. Hence, the reason given in the detention certificate that delay has occurred due to ITC formalities cannot be construed irrelevant. In view of this finding I have to hold that respondent No. 1 is bound to grant waiver of demurrage charges to the extent mentioned in its directives, i.e., 80% of the charges. 10. Counsel for respondent No. 1 has cited M/s. Oswal Woollen Mills Ltd. and Another v. Union of India and Others, AIR 1983 Supreme Court 969. I have gone through this judgment and find that it is of no help in deciding the present case. He has also made reference to Trustees of Port of Madras v. M/s. Aminchand Pyarelal Others, AIR 1975 Supreme Court 1935. In this judgment considering the provisions of Madras Port Trust Act, 1905 it has been h ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
