Demurrage waiver decisions must rest on disclosed material and fair hearing; undisclosed import-cargo guideline could not justify rejection.

The Calcutta HC noted that a waiver of demurrage under Section 53 of the Major Port Trusts Act, 1963 must be decided on recorded reasons and fair notice of the basis relied on. The Board rejected the claim by applying an undisclosed guideline for import cargo, although no guideline for export cargo was produced, and the petitioner was not given an opportunity to address that material or the basis for treating it as an importer. Because the decision rested on undisclosed material and apparent prejudice, the rejection could not be sustained. The matter was remitted for fresh consideration after notice and hearing to the petitioner and Customs.

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Issues: Whether the order rejecting waiver of demurrage charges could be sustained when the Board relied on an undisclosed guideline for import cargo, treated the claim as governed by that guideline, and did not afford a fair opportunity to meet that basis of decision.

Analysis: The claim for waiver was examined under Section 53 of the Major Port Trusts Act, 1963, which permits exemption or remission in special cases for reasons recorded in writing. The impugned order proceeded on the footing that the accrued demurrage related to the import leg and referred to an approved guideline for waiver of demurrage on import cargo, although no guideline for export cargo was available. The petitioner had not been put to notice of that guideline or invited to address its relevance, and the order itself showed that the Board relied on material not disclosed to the petitioner at the hearing. The Board also did not record any basis for treating the petitioner as an importer, yet used the import-cargo guideline to reject the claim. This resulted in prejudice on the face of the order.

Conclusion: The rejection of the waiver application could not be sustained and was liable to be set aside.

Final Conclusion: The matter was sent back for fresh consideration of the waiver claim after notice and hearing to both the petitioner and the Customs, and the writ petition was disposed of on that basis.

Ratio Decidendi: An administrative decision affecting waiver or remission cannot stand where it is founded on undisclosed material and the affected party is not given a fair opportunity to meet the basis of the decision, particularly when prejudice is apparent from the record.

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