9911796707
TMI Blog1989 (1) TMI 139X X X X Extracts X X X X X X X X Extracts X X X X ..... 986. The petitioner filed 3 separate bills of entry before the Assistant Collector of Customs (Respondent-3) according to the particulars shown below: Sl. No. Bill of Entry No. and Date Description Value 1. 201/16-04-1986 Shoulder pads Lining material Rs. 29,561.00 2. 317/16-06-1986 Garment Stay Rs. 59,641.00 3. 316/16-06-1986 Lining material Rs. 2,23,148.00 On account of possible delay in the clearance of the goods by the Customs Authorities, the petitioner applied for bonding of the goods in the Warehouse in accordance with Section 59 of the Customs Act, 1962 ('the Act' for short) in order to avert payment of demurrage. After lengthy correspondence, the petitioner was orally informed that warehousing facility under Section 59 of the Act was not available and that the petitioner should apply under Section 49 of the Act for storage in the warehouse. Without alternative, the petitioner necessarily applied under Section 49 of the Act for storage of the consignments on 12-6-1986. The petitioner, at the same time, withdrew the bills of entry filed earlier for warehousing under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ven until the appeals of the petitioner which are pending before the CEGAT are disposed of. The appeals relate to the 3 orders in respect of the 3 consignments imposing duty, fine and penalty on the petitioner. 6. Again the petitioner addressed a letter dated 14-9-1988 (Annexure-C) that the petitioner could not pay duty, fine and penalty in respect of both the consignments on account of narrow financial circumstances and urged that the consignment in respect of which the petitioner had already paid the charges on 5-8-1988 should be released and the petitioner be allowed to clear the consignment. 7. By letter dated 15-10-1988 (Annexure-D), respondent-4 issued a demand notice to the petitioner calling upon the petitioner to pay storage charges in a sum of Rs. 8,817.60 for both the consignments stored in the warehouse calculated upto 25-10-1988 together with insurance charges of Rs. 1,491.60 calculated upto 20-10-1988. In the said notice, the petitioner was notified that in default, action would be taken against the petitioner in accordance with Sections 63(2) and 72(1)(B) of the Act. The net result was that the petitioner was denied the clearance of the consignment covered by bi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 5-8-1988 in respect of one consignment covered by bill of entry No. 201 dated 16-4-1986 in full settlement of the duty, fine and penalty. The moment the amount is paid by the petitioner and accepted by the competent authority as in the instant case, the respondents are divested of the right of detention of the goods and simultaneously the right to possession and dominion of the goods became automatically vested in the petitioner. This right cannot be taken away by the respondents unless there is any legal warrant under the provisions of the Statute. During the period of divesting and vesting, in my opinion, there is no transfer of ownership, but there is only a transfer of dominion over the goods. Until duty, fine and penalty liable to be paid remains unpaid, the divesting of the goods from the petitioner and vesting in the respondents may amount to justified detention; but the moment the said charges are fully paid by the petitioner, the detention becomes illegal. Though it is not the case of the petitioner that the continued illegal detention of the consignment in question amounts to conversion, I am of the opinion that it would invariably have the effect of actionable conversio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sonable. The petitioner paid the duty, fine and penalty on 5-8-1988 and, on that date, he was entitled to the release of one of the two consignments. Though he was entitled to the release of the consignment covered by bill of entry No. 201, dated 16-4-1986, the petitioner has been called upon to pay the charges alleged to be due for storage in the warehouse upto 25-10-1988 apart from insurance charges calculated upto 20-10-1988. It may be possible for the authorities to recover the charges only in respect of the consignment for which duty, fine and penalty have not been paid, but certainly not in respect of the one which has been paid for. The demand notice does not disclose separately what is payable in respect of the consignment for which duty, fine and penalty are yet to be paid. In these circumstances, it is not possible to sustain the demand made under Annexure-D. This does not, however, preclude the respondents from the right to recover, if any, in respect of the consignment not paid for in regard to duty, fine and penalty. In other words, the right to recover the charges due for storage in the warehouse together with insurance charges is available only in respect of the cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under the lawful control of the Assistant Collector of Customs or such other Officer of Customs both by virtue of legal fiction and operation of law since in accordance with law the petitioner has paid the duty, fine and penalty for release of the consignment and has thereby acquired a right under the Statute which defeats the right of control of the statutory authorities. Therefore, I am of the opinion that the consignment which is covered under bill of entry No. 201, dated 16-4-1986 is not under the legal and lawful control of the Assistant Collector of Customs or such other Officer of Customs. The provisions of law relied upon by the learned Counsel for the respondents does not support the respondents. 19. I do not see anything in Section 126(2) of the Act which supports the case of the respondents. 20. It was also contended by the learned Counsel for the respondents that what is applicable to the facts of the case is Section 59 and not Section 49 of the Act. Section 49 is in Chapter VII of the Act and reads thus : — "Where in the case of any imported goods, whether dutiable or not, entered for home consumption, the Assistant Collector of Customs is satisfied on the applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 665, it was held that refusal or neglect by a railway company to deliver goods after demand made amounts to conversion. Detention by itself is held to be actionable as the weight of judicial opinion have it, when there is adverse withholding of the chattels of another wrongfully detained from the person who is entitled to the possession of them as well as for damages occasioned by wrongful detainer. The essence of action lay in the fact of detention and not in the misuse and appropriation of the goods, so long as the owner has a special and general property in the goods detained and a right to immediate possession. Once the duty, penalty and fine have been paid, the respondents in the instant case have no lien over the goods detained by them. The respondents by detaining the goods of the petitioner in the warehouse of respondent No. 4, are deemed to have possession of the petitioner's chattel and by refusing to deliver back the chattel to the petitioner have asserted a right which is inconsistent with the general dominion over it of the petitioner, and deprived him of the right to the use of it which at all times and in all places of his choice, he is entitled to make of it, h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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