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TMI Blog1997 (9) TMI 119X X X X Extracts X X X X X X X X Extracts X X X X ..... entered in the Bill of Entry Retention No. 306/86 Import Department S. No. 1229/8-4-1986 for a period commencing from the date of arrival of the Cargo till the date of receipt of customs duty and consequently a Writ of Certiorarified Mandamus to call for the records from the third respondent, quash the communication No. L-2/15676/86/T(C)/dated 9th October 1986, and direct the respondent No. 3 to refund the excess amount collected by way of demurrage to the tune of Rs. 5,400/- vide import application No. 1509/133, dated 29-4-1986 to the petitioner. 2.In W.P. No. 4171 of 1988 the petitioner prays for the issue of a Writ of Mandamus calling upon the respondent No. 2 herein to issue detention certificate in respect of the subject goods entered in the Bill of Entry Retention No. 306/86, Import Department S. No. 1330/8-4-1986 for a period commencing from the date of arrival of the Cargo till the date of receipt of customs duty and consequently a Writ of Certiorarified Mandamus calling for the records from the third respondent, quash the communications No. L/2/51/15677/87/T(C), dated 9th October 1986, and direct the respondent No. 3 to refund the excess amount collected by way of demur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 055/28-2-1986 under R.E.P. license issued against F13 of Appendix of the current import policy applicable for the year 1986-87, which cargo was valued at Rs. 61,510/-, that the vessel SANTOS III consisting of the above cargo had arrived Madras on 31-3-1986 and the petitioner presented the Bill of Entry for home consumption on 31-3-1986 itself, but the same was received by the Import Department on 8-4-1986 under S. No. 1229. 8.The petitioner further alleges that the subject goods, namely white card board was correctly imported as per the specifications under R.E.P. license and in terms of the current import policy, that similar consignments belonging to other importers were earlier cleared by the Customs House, Madras under the same Import Policy, while in respect of the petitioners in both the writ petitions, the Cargo was unnecessarily detained in Board's Transit Sheds at the instance of the second respondent herein for verification and for complying with the formalities prescribed under the Import Trade Control Formalities and that the samples were drawn by the Customs Department and sent for analysis. 9.The petitioner also alleges that the test report was received by the App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iver of demurrage is being accorded as per regulations framed in this respect, that as the detention certificate had not been issued for the entire period, there is every justification for the third respondent to collect the demurrage. It is further stated in the counter that such a claim for refund should have been made within the stipulated period and with the necessary detention certificate issued by the second respondent, that the third respondent is not liable to refund the demurrage charges collected by it and even if the detention certificate is issued as on date, it would be beyond the period of limitation and that the third respondent is not liable to refund any portion of the demurrage charges. 14.Learned Counsel for the petitioners vehemently contended that the inaction on the part of the second respondent is inordinate and it is nothing but an arbitrary refusal. Learned Counsel further pointed out that the second respondent had neither sent a reply nor filed the counter in these writ petitions and there is no justification for the respondent No. 2 to keep silent since 1988 onwards. 15.Mr. R.G. Rajan, learned Counsel appearing for the third respondent contended that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Writ petitions, the learned Counsel for the petitioner ultimately confined himself and bought for a direction directing the second respondent to issue the detention certificate for the remaining period, as according to the Writ petitioners, the consignment had been detained under the orders of the second respondent and not for any default on the part of the petitioners. 22.The learned Counsel for the petitioners further contended that there is no reason or rhyme for the second respondent to issue a detention certificate for the limited period viz., 11-4-1986 to 28-4-1986 and that the detention certificate should have been issued for the entire period. As already stated, the Cargo arrived at Madras Port on 31-3-1986. The free days allowed expired on 5-4-1986. Only for the period from 11-4-1986 to 28-4-1986, detention certificate has been issued, while only on 29-5-1986 orders have been issued by the second respondent permitting the petitioner to clear the goods from the Port Trust Godown. 23.On 29-5-1986, the petitioner had paid the customs duty payable on the consignment and the goods were cleared from the third respondent's godown only on 30-5-1986. It is pointed out that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bsented themselves despite grant of time for appearance. 29.Though different Counsels entered appearance for respondents 1 and 2, they have not chosen either to file counter affidavit or to place the filed or to argue the matter. 30.In the circumstances, this Court has no other alternative except to compel the second respondent to issue the detention certificate by issue of a Writ of Mandamus. 31.Learned Counsel for the respondent No. 3 contended that even if the detention certificate is issued, as on date pursuant to the orders of this Court, the petitioners will not be entitled to the relief as it would be beyond the period of six months. I am afraid, such a contention cannot be advanced as the provision in the Major Port Trust Act enables the third respondent to consider identical requests, and for no fault on the part of the petitioners in the writ petitions, they are made to suffer or sustain loss. 32.In the circumstances, this Court, directs the third respondent to consider the claims of the petitioners for refund of excess demurrage charges collected by it on production of detention certificate that may be issued by the second respondent in compliance with the Mandam ..... X X X X Extracts X X X X X X X X Extracts X X X X
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