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TMI Blog1990 (1) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... ount together with interest at the rate of 18 per cent per annum. 2. Before I deal with the submissions made by Shri Mehta, learned counsel on behalf of the Petitioners, Shri Bulchandani, the learned Government Petitioner, on behalf of Respondents Nos. 1, 2 and 3; the Union of India and the Customs Authorities, and Shri Makhija, the learned Advocate on behalf of Respondent No. 4, it will be pertinent to set out a few facts :- Sometime in March 1985, the Petitioners imported stainless steel hot rolled plates under four REP licences issued to manufacturers and exporters under April-March 1985 policy. To that end, the Petitioners opened Letters of Credit in favour of foreign suppliers. Towards the end of March 1985, the Petitioners received intimation that the foreign suppliers had shipped the goods. On 20-5-1985, the Petitioners filed the Bill of Entry for Home Consumption together with licences with the Customs Authorities for the purpose of clearance of the goods from the Customs Authorities. The Customs Authorities, however, refused to grant permission to clear the goods on the ground that the licences produced by the Petitioners were not valid to cover the import of the said ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents required by the B.P.T. by their letter dated 29-11-1985. The Petitioners thereafter addressed a letter dated 30-12-1985 to the Chairman of the B.P.T., Respondent No. 4, requesting for remission of detention charges. Respondent No. 4, however, denied the request. On 10-1-1986, the Petitioners paid a sum of Rs. 2,63,979.20 Ps. as demurrage charges to Respondent No. 4 under protest as they wanted urgent clearance of the goods. The Petitioners by their letter dated 13-1-1986 requested the B.P.T. Authorities for remission and/or refund of the demurrage charges. On 26-6-1986, the Petitioners by their Advocate's letter to the B.P.T., Respondent No. 4, claimed remission of 80 per cent under the B.P.T. Rules. The B.P.T. Authorities, by their letter dated 28-7-1986, rejected the Petitioners' application for remission. The Petitioners have impugned this letter in this Writ Petition. 3. In December 1986, the Petitioners filed the present Writ Petition and the same was admitted on 10-12-1986. 4. On the above facts, Shri Mehta, learned Counsel appearing on behalf of the Petitioners, has urged the following submissions :- Shri Mehta, firstly, urged that the goods had been detai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a rate per day which corresponds to our minimum charge for handling, storage, care and custody of the goods after the expiry of the free days. Wharfage constitutes handling costs plus storage charges for a period of four days. Deducting handling costs, the balance represents storage charges for a period of four days. It is estimated that, excluding the handling costs, storage charges per day are equal to 20% of total wharfage. It is, therefore, suggested that for the entire period of certified detention we may retain per day 20% of the wharfage to cover the services referred to herein." Para 4.11 is in the following terms :- "4.11. The period for which the concession is allowed may be retained at 150 days, the broken periods, if any, shown in the detention certificates being added up for this purpose. Cases in which the certified period of detention exceeds 150 days may be put up to the Remission Committee for decision on merits." 6. The policy of the B.P.T. Authorities, therefore, in the matter of remission charges, appears to be that the B.P.T. in deserving cases would remit 80 per cent of the demurrage charges and retain 20 per cent as service or handling charges and this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eretofore in paragraphs 4.10 and 4.11, which ultimately became part of Resolution No. 635 of 1975. Under those rules, the B.P.T. Authorities decided that the remission of the demurrage charges would be only to the tune of 80 per cent, keeping the 20 per cent towards service charges including handling costs and storage charges. Paragraph 4.11 laid down that the concession of remission would be applicable only to the extent of 150 days. The Remission Committee was empowered to decide each case on merits. The Petitioners, therefore, under the policy decision of the B.P.T. Authorities, Respondent No. 4, would be entitled only to 80 per cent of the demurrage charges for a period of 150 days. 10. Since there was a delay in the clearance of the consignment in question, the Petitioners became liable to pay demurrage to the Port Trust. That the Petitioners did in the instant case. The Collector of Customs, pursuant to the direction of this Court, issued a detention certificate in which it was stated that the goods had been detained for bona fide import control formalities. The detention certificate was issued so as to facilitate the claim for remission of demurrage from the B.P.T. Authori ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ide. There is nothing by way of the nature of enquiry of the character of material before the Remission Committee which Mr. Dhanuka has been able to point out which would make it incumbent upon the Remission Committee to have afforded a personal hearing to the Petitioners in the present case." 13. In the instant case also, I find that the Petitioners at no stage had asked the Remission Committee to give a personal hearing. This being the case, I do not think that Shri Mehta's contention can be accepted that in the absence of a personal hearing the order passed by the B.P.T. Authorities dated 28-7-1986 was bad. 14. With regard to the submission made by Shri Mehta that the delay in the instant case was not due to any fault of the Petitioners, and therefore, the Petitioners should be allowed the full remission for the entire period, I may only point out that in the case of Port of Bombay v. I.G. Supplying Co., AIR 1977 SC 1622, the Supreme Court was pleased to observe :- "The position therefore is that even though the delay in clearing the goods was not due to the negligence of the importer for which he could be held responsible yet he cannot avoid the payment of demurrage as th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the detention certificate on 7-11-1985, the detention certificate was passed by Respondents Nos. 2 and 3, the Customs Authorities, only on 9-12-1985, i.e., after thirty-two days. Shri Bulchandani rightly pointed out that the Customs Authorities had to obtain a certified copy of the order of this Court, that they had to forward the order of the Court together with the relevant papers to their Legal Department and obtain their opinion. It was only after the necessary formalities had been complied with that the detention certificate was issued on 9-12-1985. The explanation given by Shri Bulchandani appears to be plausible and reasonable. In any event, assuming that there was a delay on the part of the Customs Authorities in issuing the detention certificate, the Petitioners could not be penalised and mulcted for the fault of the Customs Authorities. 18. Finally, Shri Makhija contended that the detention certificate issued by the Customs Authorities was not in proper form as it did not comply with the proforma issued by the B.P.T. Authorities. Now, I have perused the detention certificate issued by the Customs Authorities, and with the help of Shri Makhija, I have also compared the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioners. I have dealt with the reasons given in the affidavit-in-reply, and I have come to the conclusion that the reasons given are such that no reasonable person would arrive at the conclusion arrived at by the Secretary. The order of the B.P.T. Authorities, therefore, is certainly not one which is informed by reason and hence the same is perverse. On that ground, the order needs to be struck down. 21. Finally, with regard to the submission made by Shri Mehta that the Customs Authorities should be called upon to make good the amount of the remission in respect of the balance of the 76 days out of a total of 226 days, it must be pointed out that Respondents Nos. 2 and 3, in the instant case, have not committed any breach of a statutory duty. The Customs Authorities felt that the goods imported were not covered by the licences produced by the Petitioners and hence they passed the order of adjudication. It is obvious, therefore, that they were carrying out their duty in a bona fide manner. In these circumstances, to call upon Respondents Nos. 2 and 3 to make good the amount of the remission for 76 days would be to impose upon them a penalty. One has also to keep in mind the fac ..... X X X X Extracts X X X X X X X X Extracts X X X X
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