2016 (8) TMI 674 - HC - Customs

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

The court dismissed the writ petition, allowing the petitioner to seek a refund of demurrage charges through a civil suit. The court found the issues of ... Refund - payment towards demurrage under protest - (i) whether the goods in question are easily identifiable and distinguishable (ii) whether delay in clearing or taking delivery of the consignment is attributable on the part of the petitioner or the respondents 1 to 3 and (iii) whether the respondents 1 to 3 are justified in slapping demurrage charges payable by the petitioner. Held that:- It is the case of the petitioner that though the goods of the petitioner as well as the fourth respondent are easily distinguishable, the official respondents restrained the petitioner from taking up the delivery of the goods on the ground that the goods have been mixed-up and therefore, they are not in any liable or responsible for the delay in clearing the goods. But this allegation of the petitioner is emphatically denied by the respondents 1 to 3. It appears that there is a dispute between the petitioner and the fourth respondent and therefore, the petitioner has obtained a No Objection letter from the fourth respondent 15.11.2014 and only thereafter the goods were released on 24.11.2014. Whether the delay is attributable on the part of the petitioner or respondents 1 to 3 cannot be gone into by this Court in this writ petition. They are disputed questions of fact. In fact, the petitioner also paid the demurrage claimed by the respondents 1 to 3 under protest. The petitioners would mainly contend that the goods imported by the importers, to whom the petitioner and fourth respondent are working as customs agent, are easily identifiable and having distinct feature with each other and therefore the question of mixing up of the cargo does not arise. This averment has been denied by the respondents 1 to 3 in the counter by contending that the consignment handled by the petitioner itself are of different dimensions as that of the fourth respondent and the fact of mixing up of the cargo had also been admitted by the petitioner in the letter dated 09.09.2014. In any event, such disputed questions of fact cannot be gone into by this Court by conducting a roving enquiry in exercise of jurisdiction conferred under Article 226 of The Constitution of India. However, the petitioner is given liberty to agitate their claim for refund of the demurrage amount before the appropriate Civil forum. Writ petition dismissed - Decided against the appellant. 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.