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TMI Blog2006 (3) TMI 177X X X X Extracts X X X X X X X X Extracts X X X X ..... es used for manufacturing the same. On 26-3-1996, the petitioners decided to export the consignment of seven wooden cases containing High Speed Twin Track Assembly Machine against Shipping Bill No. 735680, dated 22-3-1996. On 27-3-1996, the Special Investigation Intelligence Branch of the Customs Authorities detained the said consignment on the allegation that the value declared by the petitioners was excessive and thus there was an over valuation of the consignment. On 2-4-1996 the valuation was carried out of the said machine. On 4-5-1996, the petitioners requested for release of the consignment for the purpose of export thereof. However, only on 1-7-1996 the Chief Commissioner of Customs permitted a provisional release of the said consignment on petitioners providing a bond for the full value declared and bank guarantee in the sum of Rs. 10 lacs. On 24-8-1996, the petitioners complied with the said demand of the Customs Authorities and effected provisional release and exported the said consignment. In the meantime, the 1st respondent demanded towards wharfage and demurrage an amount of Rs. 19,85,520/- for the period from 27-3-1996 to 20-8-1996. On 11-1-1997, the petitioners requ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs Act but it is a breach of the provisions of FERA Act. On 16-12-1997, the order passed by the Division Bench of this Court in Writ Petition No. 582 of 1997, dated 2-5-1997 was challenged. By an order dated 3-8-1998, the Supreme Court disposed of the said Special Leave Petition by recording the statement of the Customs authorities that they will issue a detention certificate within four weeks from the said date and if such a detention certificate is issued, it will be considered by the Port Trust authorities in accordance with law. It was further made clear that if there is any liability determined by the respondent No. 1 to pay the demurrage charges then the same will be payable by the petitioners. On 7-11-1997, the Customs Authorities filed a reference application against the order dated 7-11-1997 passed by CEGAT and by an order dated 1-9-1998 the said reference application filed by the Customs Authorities has been dismissed. On 18-9-1998, the Customs Authorities issued a certificate to the petitioners what is known as detention certificate stating therein that the said goods were detained for the purpose of bona fide customs formalities. However, the said detention certif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere is no liability to make payment of the demurrage charges to the Port Trust Authorities and that the demand of the Port Trust Authorities is liable to be rejected. 4. The learned Counsel for the petitioners in support of the aforesaid contention has contended before me that the original order of levying penalty on the export consignment on the ground of over valuation has been successfully challenged and the same has been quashed and set aside. It has been further contended that thus it is evidenced that the detention of the consignment was illegal and the petitioners are not responsible for the delay in exporting the said goods. It has been further contended that in fact the authorities have issued a detention certificate holding that there is a bona fide ITC formalities undertaken and thus the said goods were detained. It is further contended that once having detained the goods for bona fide ITC formalities for the purpose of export, it is not permissible for the respondent No. 1 to claim demurrage and wharfage charges from the petitioners and the Port Trust Authorities are bound to accept the detention certificate issued by the Customs authorities. It has been further conte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Major Port Trusts Act then in that event the only authority which is responsible for detaining the goods illegally and unauthorizedly i.e. respondent Nos. 3 and 4 namely, the Customs authority be held liable to pay the necessary demurrage charges and not the petitioners herein. It has been contended that the liability of the respondent Nos. 3 and 4 is established because not only the fact that the order passed by the respondent Nos. 3 and 4 of imposing penalty has been quashed and set aside by CEGAT and the order of CEGAT has been upheld by this Court but after accepting the said order they have also issued a detention certificate. Thus, if the detention certificate is not accepted by the respondent No. 1 it is the liability of the respondent Nos. 3 and 4 to pay the said demurrage charges and not the petitioners herein. 6. In support of the aforesaid contention, the learned Counsel for the petitioners has placed reliance on Section 53 of the Major Port Trusts Act which inter alia confers a power of exemption or remission of the demurrage charges in special cases for reasons to be recorded in writing. The provisions of Section 53 of the Major Port Trusts Act, 1963 reads as unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to offer an alternative job which the regulation requires it to exercise in individual cases of retrenchment. As earlier stated, the Managing Director has issued two circulars; (i) dated December 19, 1986 and (ii) dated March 12, 1987 directing the Regional Managers to dispense with the services of the drivers who are found to be medically unfit to drive the vehicles. It is directed in the circulars that such drivers should be paid benefits like retrenchment compensation which they are entitled to under the U.P. Industrial Disputes Act. The circulars thus leave no scope for exercising discretion to consider the individual cases of retrenched drivers for any alternative job. It may be stated that the statutory discretion cannot be fettered by self-created rules or policy. Although it is open to an authority to which discretion has been entrusted to lay down the norms or rules to regulate exercise of discretion it cannot, however, deny itself the discretion which the statute requires it to exercise in individual cases. The concerned authority of the Corporation therefore, notwithstanding the said circulars are required to consider the cases of retrenched drivers for alternative jo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eported in 2004 (177) E.L.T. 18 (S.C.) = AIR 1972 SC 542, particularly para 14 of the said judgment which is reproduced hereinunder has contended that the principle mentioned therein should be accepted in case of demurrage and wharfage charges also. Para 14 of the said judgment reads as under :- "14. Now coming to the question of issuing a writ of mandamus directing the respondents or any of them to deliver possession of the seized dal, we would have found no difficulty in issuing the mandamus asked for if the seized goods had been in the possession of the customs authorities. But admittedly those goods are in the possession of the Port Commissioners. In law they have a lien over the goods for the rent and other charges due to them. Some-one has to pay those charges before taking possession of the goods. Consequently we cannot issue a writ of mandamus to the Port Commissioners to deliver the goods in question nor can we issue a writ to the other respondents to deliver possession of those goods as they are not in possession of the same. This is undoubtedly a hard case. The appellant has been unlawfully deprived of the possession of his valuable goods because of the illegal action ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to levy demurrage charges immediately after stuffing of cargo inside the terminal and therefore also charges are liable to be paid by the petitioners. For all these reasons the remission application has been rejected. It has also been brought to my notice that thereafter review application was filed and almost for identical reasons the review application was also rejected on 25-3-1997. He has further submitted that thereafter the petitioners obtained detention certificate and called upon the authorities to reconsider their case and accordingly the respondent authorities were required to reconsider the case and thereafter passed another order dated 8-12-1998 rejecting the case of the petitioners. However, in the order dated 8-12-1998 it is the case of the 1st and the 2nd respondents that the claim of the petitioners is considered under Section 53 of the Major Port Trusts Act as well as under the policy and the said claim has been rejected. Thus, the learned Counsel for the respondent Nos. 1 and 2 submits that the arguments of the learned Counsel for the petitioners that their case is not considered by the respondents 1 and 2 de hors the policy and under Section 53 of the Major Port ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the judgment of the Apex Court in the case of International Airports Authority v. Grant Slam International of India, (supra). The learned Counsel for the respondent Nos. 3 and 4 has thereafter placed reliance on the judgment of the Apex Court in the case of Trustees of Port of Madras v. Nagavedu Lungi Co. reported in 1995 (80) E.L.T. 241 (S.C.) and it has been contended that in the light of the judgment in which it has been held that the liability to pay demurrage charges and other incidental charges by the importer-consignee equally applies to the exporter-consigner of the goods also and therefore, it is the liability of the petitioners. The learned Counsel for the respondent Nos. 3 and 4 has thereafter relied upon the judgment of this Court in the case of Modern Rubber Industries v. Union of India reported in 2003 (154) E.L.T. 571 (Bom.) particularly paras 14, 15 and 16 thereof which read as under :- "14. Having considered the rival submissions, we find much substance in the submission advanced by the learned Counsel for the Revenue. Under Section 155 of the Act, all the actions of the officers of the Government or Local Authorities for anything done, or intended to be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods cannot be attributed to the Customs Department and the petitioner cannot be absolved of their obligation to pay the demurrage charges payable on the goods imported by the petitioner." 12. The learned Counsel for the respondent Nos. 3 and 4 has thereafter relied upon an unreported judgment of the Division Bench of this Court in the case of Writ Petition No. 3553 of 1998 (M/s. Santogen Silk Mills Ltd. and Anr. v. Union of India and Ors) dated 28-4-2005 and another unreported judgment of the Division Bench in Writ Petition No. 5788 of 1997 (Apollo Paper Mills Ltd. v. Union of India Ors.), dated 28-10-2005 [2006 (206) E.L.T. 106 (Bom.)] and has contended that insofar as this Court is concerned, the consistent view taken is that the Customs authorities cannot be saddled with the liability of demurrage and wharfage charges unless it can be shown that the customs authorities are not entitled to protection under Section 155 of the Customs Act, 1962 . 13. Considering the rival submissions advanced before me by all the parties, I am of the view that insofar as the contention of the petitioners is concerned that the claim of the petitioners is not considered under Section 53 of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iled to establish. It has been also pointed out that guide-lines apply to import consignment and not to export consignment and thus the respondents are entitled to reject the claim of the petitioners and the same is accordingly validly done. I am of the opinion that in the light of the judgment of the Apex Court in the case of International Airport Authority (supra) the respondents are not bound to accept the detention certificate issued by the Customs Authorities and are entitled to consider the case on its own merits. In the present case the case of the petitioners has been considered by them on the ground whether the petitioners are entitled to the benefits of the policy issued by the Government and admittedly the petitioners case do not fall under the said guide-lines issued by the Government and the petitioners case is also considered independent of the said guide-lines as is evidenced from the three orders issued by respondent Nos. 1 and 2 and thus it is not possible to hold that the respondent Nos. 1 and 2 have failed to exercise their jurisdiction under Section 53 of the Major Port Trusts Act, 1963. In that light of the matter, it is not possible to grant relief to the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of mala fide pleaded in the petition nor the same is argued before me. Thus the provisions of Section 155 of the Act will apply with full force. Though the view taken by the various Division Benches is not in conformity with the view taken by this Court, however, in the light of the fact that the judgment of the Division Bench of this Court which is holding the field is relevant and binding upon me, it is not possible for me to accept the contention of the petitioners by relying upon the various judgments of the various High Courts to direct the Customs Authorities to pay demurrage and wharfage charges. The reliance placed on the judgment of the Apex Court in the case of Padam Kumar Agarwalla (supra) is misconceived. In fact the judgment makes it very clear that the demurrage and wharfage charges are to be paid before taking delivery of the goods and in fact the Court has held that in a writ petition no such relief can be granted and the same is left to the Customs. Authorities for taking appropriate steps or to file further litigation. The judgment is not an authority on the proposition of law that in cases where the goods are detained by the authorities and such detention having ..... X X X X Extracts X X X X X X X X Extracts X X X X
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