9911796707
TMI Blog1989 (8) TMI 91X X X X Extracts X X X X X X X X Extracts X X X X ..... ffective as and from 1st March, 1983. Incidentally in the instant case there has been an increase in the customs duty as and from 1st March, 1983 in contrast to the one that was prevailing up to and on 28th February, 1983 and that has generated the entire controversy because of the events that have swiftly occurred on 28th February 1983. To understand the thrust of the controversy a short resume of certain events would be necessary to be narrated and discussed. 3. In Writ Petition No. 817 of 1983 the Petitioners are a Company engaged in the business of texturising base flat yarn at its factory at Sakinaka and this yarn is tex-turised by the Company either in the nature of fully oriented yarn or partially oriented yarn which is in the trade parlance known in short as PFY and POY respectively. For that purpose they have to purchase the base flat yarn locally or get it imported. According to the Company they imported certain consignments of the same yarn and lodged the same in warehouse conducted by the Central Warehousing Corporation at Cotton Green in this Metropolis. This was no doubt a past event and the goods continued to be in the warehouse since no delivery was obtained for m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealised that in so far as the payment of money is concerned the time was advanced by one hour inasmuch as the counter in that behalf was closed at 3 p.m. instead of 4 p.m. and correspondingly shutters were practically closed down for the purpose of delivery at 4 p.m. instead of 5 p.m. They tried to register their protest on the spot but the 4th Respondent told them his inability more so in the face of certain directions issued to him as reflected through certain circulars with which the Petitioners claim not to be familiar with or conversant at all. This added to the confusion and a feeling of surprise in their mind because they were confronted with the situation that though all formalities were observed and though they were very much willing to pay the warehousing charges and though they were armed with adequate money at that time they could not get delivery even though they were present not only before 5 p.m. but even much before 4 p.m. and for that matter according to them they were actually present right from 9 in the morning and thereby they were according to them present even prior to 3 p.m. Disillusioned by this situation and frustrated in their attempt to get the delivery i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of 1983 contains more or less identical facts almost in all respects. There also the Petitioner-Company are dealing in the business of texturising base flat yarn. They imported either fully oriented yarn or partially oriented yarn for home consumption and certain consignments so imported were lodged in the same warehouse though months earlier. In that case also all the other charges including the customs duty have been fully paid as was prevailing on 28th February, 1983. All the Bills of Entry were presented and noted. This they had done partly on 26th and partly on 28th February, 1983. Thus the only item remains to be fulfilled was of payment of warehousing charges for which purpose they had also gone to the warehouse on 28th February 1983 but they could not get delivery nor were they permitted to pay warehousing charges more or less on the same ground as canvassed on the first Petition. The same correspondence ensued between the parties and the same reply was given by the Respondents relying on the same circular and it is under the identical circumstances that for identical relief this Petition has been filed. 9. In so far as Writ Petition No. 818 of 1983 is concerned the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Jagtiani the learned Counsel for the Petitioners in all the three Petitions contended that though the Petitioners were very much present and prepared and actually offered to pay the warehousing charges to the concerned authority on the 28th February, 1983 even within the stipulated period, still it was not accepted by Respondent No. 4 or any other Officer of the Corporation without there being any fault on their part and this prevention at the hands of the Corporation Officers has further entailed into the consequence of the Petitioners not being able to get delivery of the consignments. The second limb of the argument is that to their utter surprise the monetary dealings were closed on that day at 3 p.m. while the shutters were practically closed down for delivery of goods at 4 p.m. and thereby advancing both these working hours by one hour and which was an utterly arbitrary act on the part of the Corporation Officers for which there has been no sanction and if that be so then the Petitioners not getting delivery of the consignments cannot be attributed to the Petitioners but would be entirely at the door of the Officers of the Corporation with the further result that the Petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion Officers and if by chance there had been reduction in the customs duty in the new budget to be effective from 1st March, 1983 they would have asked for the refund of the duty or as a counterpart if the rate was increased they would have insisted that they would be liable to pay duty only at the rate which was prevailing on 28th February, because for no fault on their part delivery was denied to them even before 5 p.m. on 28th February, Mr. Sethna no doubt endeavoured to place reliance on the circular in question but when specifically questioned he could not get any specific instructions from the Officers concerned about the legal sanction and mandate behind this circular. He also relied on the provisions of Section 15 read with Section 68 of the Customs Act in support of his argument that the mere payment of customs duty and presentation of Bill of Entry is not enough but the actual payment of the warehousing charges and even presentation of the discharge certificate from the bank are some of the items contemplated by Section 68 sub-clause (b) when the party gets entitlement to take delivery of the goods and if there is any deficiency on the part of the Petitioners in that beha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that they were present even right from 9 a.m. However, according to them, the scene generated a feeling in their mind that the staff was acting rather slowly and was not able to cope up with the tremendous rush that was present at that time. No doubt they stated that they learnt about some strike amongst the staff members though they modified by saying further that there was some go-slow policy on the part of the staff on account of some internal disputes. Mr. Sethna the learned Counsel no doubt contested the correctness of this position and Mr Jagtiani the learned Counsel fairly stated that there may not be actual strike in that sense but according to him the fact remains that there was no satisfactory progress by the staff members in accepting the warehousing charges and effecting deliveries. This may be attributable to several factors and in fact the affidavit of Respondent No. 4 at least in a vague manner suggests that the staff could not cope up with the rush meaning thereby that it is accepted by him that all the traders could not be satisfied by accepting warehousing charges by them with the necessary result that though Bills of Entry were presented and noted and though ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hysically present to pay the warehousing charges and to take the delivery even before 3 p.m. and 4 p.m. as per the advanced working hours and certainly before 4 p.m. and before 5 p.m. as per the regular working hours and whichever timing are accepted the situation is inconvenient for the Department. In other words, even if it is accepted, though it is difficult under the circumstances to do so, that the monetary transaction was closed at 3 p.m. and delivery could not be effected after 4 p.m. still if the Petitioners claim that they were present prior thereto is accepted then they cannot be blamed. However even assuming that they tried to present the warehousing charges between 3 p.m. and 4 p.m. and thereby sought to get delivery between 4 p.m. and 5 p.m. the question arises whether there was any justification for preventing them to do so which was solely based on one circular on which reliance is placed by Mr. Sethna the learned Counsel for the Department. 16. That circular has been annexed to the Petitions and it is dated 18th February, 1983 purported to have been issued by the Bond Department, New Customs House, Bombay, and is purported to have been signed by the Assistant Coll ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the recitals in the affidavit of the 4th Respondent. The question has now been rightly posed by Mr. Jagtiani the learned Counsel for the Petitioners as to what is the legal sanction for this circular and whether the same can be accepted as a mandate. The learned Counsel for the Respondent Mr. Sethna when questioned could not throw any light on this aspect much less could he effectively answer this very relevant question posed with the necessary consequences that nothing has been shown on this forum to accept the legal validity of this circular namely about the authority, the sanction and all other features which go to make out a validly legal circular. In the absence of any such material and even an ostensible explanation which is not coming forth this becomes inescapable to obviously strike down the validity of this circular having no existence in law at all. It cannot be lightly overlooked that advancing the working hours by one hour on 28th February would make a world of difference because when a trader goes to a warehouse in the normal expectation that he can conclude the monetary transactions at 4 p.m. and he can get the delivery up to 5 p.m. he practically gets a rude shock ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in question. 19. Once this premise is accepted, then the main plank of argument sought to be advanced on behalf of the Department must completely topple whereas the dominant contention of the Petitioners deserves to be upheld. Alternatively if the other contingency is examined that the Petitioners were waiting to offer the warehousing charges between 3 p.m. and 4 p.m. and thereby they could have obtained delivery between 4 p.m. and 5 p.m. as usual, the Petitioners' assertion that even this was not done by the staff within that time also even though they were just awaiting their turn for which the entire blame lies with the staff is not seriously controverted. The only affidavit filed is on behalf of Respondents No. 4 and as such that contention also deserves to be upheld. Really speaking the Petitioners would succeed on both these premises. 20. To complete the circuit only a few aspects may be cursorily observed. 21. Thus for instance as stated at the outset immediately on the 28th February, 1983 the Petitioners registered their protest with their Association and a significant statement is reflected therein that they had attended the warehouse for quite some time but the wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sudden rush." There is also another letter dated 5th March, 1983 addressed by the Deputy Collector of Customs to the President of the Association wherein it is reiterated that there was a large number of ex-bond Bills of Entry presented and to be completed on 26th and 28th March, 1983 "resulting in heavier than the normal work load on the 28th which also contributed to the difficulty". As stated earlier we have the only affidavit of Respondent No. 4 who has also taken recourse to this circular. Paras 6 and 7 of that affidavit make some interesting reading and the relevant recitals are as: "As per normal practice of the Corporation, all collections are received one hour before the closing time for physical deliveries...... To be more precise the time up to which the money is collected is 4 o'clock on all days of the week and the deliveries could be effected up to 5 o'clock on all working days of the week. However on 28th February, 1983 being the budget day, the schedule was changed with notice to the public by one hour i.e., deliveries were to be completed by 4 o'clock and moneys were required to be paid by 3 o'clock in the noon. I say that the Petitioners in this case did ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were effected before 5 p.m. then as such plea would not have been available to the Petitioners and secondly, which is more important, because the main issue is about the validity and justification for the action of non-allowing the delivery and not accepting the warehousing charges. 24. Mr. Sethna the learned Counsel no doubt relied on a circumstance which is available only in one Petition being Writ Petition No. 818 of 1983. According to him the Petitioners therein have accepted that they came to the warehouse armed with lien discharge certificate from the bank at 20 minutes past 4 p.m. and this was admittedly after 4 p.m. which was the scheduled time which was thus after the scheduled time was over even as per the normal working hours, and therefore according to him those Petitioners forfeited their right to get the delivery. Even assuming that be so the crucial point unfortunately has been missed in this controversy. As rightly contended by Mr. Jagtiani the learned Counsel it is the monetary transaction which has the direct nexus to the schedule time of 4 p.m. which was advanced to 3 p.m. and it has nothing to do with the physical presentation of the discharge certificate fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly and other amounts. In my opinion the object as enunciated by sub-clause (b) docs not embrace within its fold the presentation of the discharge certificate from any bank. In a way that would be only incidental because the main count would be about the payment of customs duty and the payment of warehousing charges. The first has already been paid while the second was offered. The first was accepted while the second was not accepted. If that be so then it is futile for the Department to contend that by reason of this lapse there is no fulfilment of the prescription under sub-clause (b) of Section 68 with the necessary consequences that it would disentitle the Petitioners to obtain delivery. In my opinion, no further comments are required. 25. Incidentally Mr. Jagtiani the learned Counsel sought to place reliance on Rule 224 of the Central Excise Rules and more reliance was placed on sub-clause (2) on which basis an argument was canvassed that if there is any advancement of the working hours for the payment and delivery then a specific provision is made either under the Rules or under the statute which is in contrast by an absence of any such provision under the Customs Act or the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t hardly makes any difference. It was then contended in a rather faint way that this circular is attached to the Writ Petitions. The contention based on this premises is however only illusory because it was sought to be suggested that by this process the Petitioners themselves wanted to rely on this circular. This inference is hardly acceptable for the obvious reasons. Annexing the circular is not equivalent of accepting the circular and that annexure was in the context of assailing that circular on merits. This contention therefore has also no merit. 27. Having regard to all these features which are elaborately considered and analysed I have no reservation in my mind that the Petitions must succeed with the resultant consequence that the petitioners will have to be given the relief which they have claimed, viz., to the effect that they will be permitted to pay the warehousing charges which are due and lift the consignments and which lifting would be deemed to have been done as on 28th February, 1983 with the further consequential relief that they would be entitled to take the delivery only against the customs duty which they have already paid meaning thereby they would be liable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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