2016 (8) TMI 674 - HC - Customs

Court dismisses writ petition, petitioner can pursue refund via civil suit. Disputed facts require detailed examination.

M/s. Orissa Stevedores Limited Versus The Traffic Manager, Chennai Port Trust

M/s. Orissa Stevedores Limited Versus The Traffic Manager, Chennai Port Trust - 2016 (338) E.L.T. 193 (Mad.) Issues Involved:1. Identifiability and distinguishability of the goods.2. Attribution of delay in clearing or taking delivery of the consignment.3. Justification of demurrage charges imposed by the respondents.Detailed Analysis:Identifiability and Distinguishability of the GoodsThe petitioner argued that the goods imported by the petitioner and the fourth respondent were easily distinguishable due to their distinct dimensions. However, the respondents countered this claim by stating that both consignments were landed with 'Nil' marks and were stacked in a mixed condition, making it difficult to identify the ownership of the cargo. The court noted that the petitioner had admitted to the mix-up of cargo in their letter dated 09.09.2014. Consequently, the court found that the issue of whether the goods were easily identifiable and distinguishable could not be resolved in this writ petition due to the conflicting claims and required a more detailed examination of facts.Attribution of Delay in Clearing or Taking Delivery of the ConsignmentThe petitioner contended that the delay in clearing the goods was due to the respondents' actions, specifically the mix-up of cargo, which was beyond their control. The petitioner had cleared 95% of the goods by 19.08.2014 and was restrained from clearing the remaining 5% due to the mix-up. The respondents argued that the petitioner and the fourth respondent were responsible for the mix-up and the subsequent delay. They also pointed out that the petitioner had obtained a No Objection Certificate from the fourth respondent only on 15.11.2014, which further delayed the clearance. The court observed that there were disputed questions of fact regarding the attribution of delay, which could not be resolved in a writ petition and required a civil suit for proper adjudication.Justification of Demurrage Charges Imposed by the RespondentsThe petitioner claimed that the demurrage charges were unjustified as the delay was not attributable to them. They relied on various legal precedents to argue that demurrage could only be levied if the delay was due to the importer's negligence. The respondents maintained that demurrage was justified as the goods were not cleared within the stipulated seven free days, and the delay was due to the petitioner's inefficiency and internal disputes. The court noted that the respondents had issued advance notices to the petitioner regarding the demurrage charges and had convened meetings to resolve the issue. Given the disputed facts and the procedural complexities, the court concluded that the demurrage charges could not be adjudicated in a writ petition and required a civil suit for resolution.ConclusionThe court dismissed the writ petition, stating that the petitioner had the liberty to pursue their claim for a refund of the demurrage amount before the appropriate civil forum. The court found no reason to issue a Mandamus for the refund of the demurrage charges, as the issues involved required a detailed examination of disputed facts, which was beyond the scope of the writ jurisdiction.