9911796707
TMI Blog1997 (2) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... uction, till the question of remission of demurrage is finally considered by the respondent authorities and/or till the disposal of this application; A writ of and/or order and/or direction in the nature of Certiorari do issue commanding the respondents, each one of them, their servants, agents and subordinates to certify and transmit all records relating to the decision to refuse granting remission of demurrage in respect of the consignment imported by the petitioners in terms of Circular dated 1st August, 1995, being Annexure `G' herein." 2.The fact of the matter is not in dispute. On 24-1-1992, the Ministry of Surface Transport laid down guidelines as regards waiver of demurrage charges payable to the Calcutta Port Trust. On 16-11-1992 a vessel `Andra Mache' arrived at Calcutta Port. With the consignment of petitioner with two containers, consignments of several other persons also were brought by the said ship. The containers carrying Cargo were de-stuffed like the consignment of other consignees. On or about 17-5-1993 the Customs authorities allegedly informed the petitioners and other importers similarly associated that `bearings' exported by them would be assessed on Invoic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Resolution No. 30, dated 27th February, 1976 and with the stipulation that these guidelines would not be treated as instructions under Section 111 of the MPT Act. Resolved further that the consignments placed for consideration in the meeting be granted a one-time concession in accordance with the new guidelines and these consignments be allowed delivery on recovery of 20% of demurrage charges actually accrued up to the date of delivery or re-assessed CIF value of the consignments finally accepted by the Customs, whichever would be more, provided the consignments were cleared within a period of one month." 4.In view of the aforementioned resolution, the petitioner made another application on 7-9-1995. On 12-9-1995 the Traffic Manager of the Calcutta Port Trust issued a circular in terms of the resolution dated 30-8-1995 and cleared the name of other consignees granting such concession on demurrage. On 14-9-1995 the petitioners made another representation. On or about 28-9-1995 by resolution No. 143 time for taking delivery was extended till after 45 days from 28-9-1995. The petitioners made a further representation on 11-11-1995 and sent letters on 5-2-1996, 17-4-1996, 18-4-1996 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Co. & Ors. reported in 1995 (3) Supreme Court Cases 730, on the aforementioned point as also a decision of the Apex Court in the International Airports Authority of India and Others v. Grand Slam International and Others reported in 1995 (77) E.L.T. 753 (S.C.) = 1995 (3) SCC page 151. It was further submitted that there is no question of any discrimination in this matter inasmuch as the petitioner did not avail the one-time benefit granted to the other consignees who were similarly situated. 8.The impugned order shows that the demurrage is charged @ Rs. 1,546/- and up to 30th April, 1996 and, thus, an amount of Rs. 17,48,014/- has already accrued in that regard. It has been taken note of the fact that the petitioner could not take delivery of the consignment owing to delay in assessment of customs duty. While passing the said order, it appears that the opinion of the financial adviser and Chief Accounts Officer and Traffic Manager had been taken into consideration. It was further noticed : "It may be mentioned that the consignment of bearing of M/s. H.M. Brothers Pvt. Ltd. was also lying at Calcutta Dock System on 30th August, 1995 when the Trustees had granted the aforesaid one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is evident that the Port authorities failed to implement its own policy decision so far as the writ petitioners are concerned. In Union of India v. M.P. Joseph reported in AIR 1973 SC page 303 the Apex Court observed :- "To say that an administrative order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and impose duties." In the instant case, the policy decision of granting waiver/remission of demurrage charges after adoption of the said resolution by the Trustees conferred a right on the writ petitioners as also other importers/consignees who are qualified therefor and impose a corresponding duty on the Board to grant such remission/waiver to eligible applicants. When such a right is violated and such a duty is infringed the Writ Court can certainly come in aid of the sufferer. In the instant case the concerned respondents took a policy decision of granting waiver of demurrage charges on 30th August, 1995 and application therefore could be filed only thereafter. In any event, it is not disputed that the petitioners filed such applications even earlier and as the said representations had not been considered, the im ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence." As the respondents in passing the impugned order have failed to take into consideration the relevant facts and have based the impugned decision on irrelevant ground, the said order cannot be sustained. In Medi Hospital v. Union of India reported in 1997 (89) E.L.T. page 425, the Apex Court while considering the exemption notification under the Customs Act, 1962 held that an importer cannot have a claim for absolute exemption from payment of customs duty as of right and therefore the contention that the writ petitioners were not entitled to seek Mandamus may not be held to be incorrect but since the benefit of the exemption notification has been given to all other importers similarly situated, its claim to the petitioner was in violation of Article 14 of the Constitution of India. 17.It is now well settled that in a given case this court has the power to give such direction as could be issued by the respondents themselves. 18.This application is, therefore, allowed, the order dated 31-7-1995 as contained in Ann ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
