TaxTMI 
TaxTMI 
2009 (9) TMI 122
X X X X Extracts X X X X
X X X X Extracts X X X X
....10-1997 before the Commissioner of Customs (Appeals), who, by his Order-in-Appeal, dated 9-10-1997, set aside the order dated 27-9-1997 and held that the value determined by the petitioner under Rule 4 of the Valuation Rules is correct. 4. Peeved at that, the Department preferred an appeal vide No. C941 of 97 before the Customs, Excise and Gold (Control) Appellate Tribunal, Madras (in short, "the Tribunal"). As the imported goods were lying idle and the petitioner company was not able to clear the goods in view of the pendency and delay in disposal of the appeal before the Tribunal, the petitioner filed a Writ Petition No. 13914 of 1998 before this Court for speedy disposal of the appeal, pursuant to which, this Court, by an order dated 9-9-1998 directed the Tribunal to dispose of the appeal within six weeks from the date of receipt of the order. In compliance of the said order, the Tribunal remanded the matter to the second respondent for de novo consideration. 5. Following the said remand, the second respondent passed the Order-in-Original, dated 10-12-1998, confirming the value of consignment at USD 1800/MT at the merit rate of duty applicable to the imported goods. The pe....
X X X X Extracts X X X X
X X X X Extracts X X X X
....order was passed by the second respondent. The goods which arrived by the Vessel M.V. Attica, Rotation No. 592/97 Line No. 6, are still available in the Port without being cleared by the petitioner. The petitioner, by a letter dated 29-2-2004, has requested the Assistant Commissioner Group 7 to direct the Proper Officer to modify the working sheet and issue the order for the amount of duty together with extension in remission period in demurrage after 27-2-2004 and up to date of communication of order by providing some days for early clearance of long delayed consignment. The petitioner, by his letter dated 15-3-2004, enclosing a letter of representation made to Chairman, Central Board of Excise and Customs, New Delhi, requested to recommend to Board for waiver of interest. Again on 15-5-2004, the petitioner wrote another letter, requesting for reassessment of Bill of Entry per the final de novo order in Original No. 557/1999, dated 22-8-1999, and also stated that the original Bill of Entry was not with them since the same was not returned to them after assessment. 8.2 In consideration of the petitioner's request, the second respondent has reconstructed the Bill of Entry and rea....
X X X X Extracts X X X X
X X X X Extracts X X X X
....t of demurrage on behalf of the petitioner, who is primarily responsible for all the delays, on account of which demurrage charges have mounted up to Rs. 88,98,989/-. As such, this Writ Petition is liable to be dismissed. 9. Learned counsel for the petitioner would submit that the respondents have caused unreasonable delay in adjudicating the matter and taken about six years to finalise the issue and, therefore, they alone are responsible to bear the demurrage charges. He has cited the following decisions: (i) Shipping Corporation of India Ltd. v. C.L. Jain Woolen Mills, 2001 (129) E.L.T. 561 (S.C.): "2....According to the owner, under the licence, thus issued by the Controller of Imports and Exports, entitling import of raw materials without payment of duty, the Customs Authorities committed error in proceeding with the confiscation proceedings and ordering confiscation as well as levying penalty. The Customs Authorities as well as the Controller of Imports and Exports had been arrayed as party-respondents in the writ petition. Both of them as well as the Union of India resisted the claim of the owner, who had imported the goods in question. The High Court disposed of the....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ing of the petition, came to hold that the entitlement of the carrier of the goods to charge demurrage charges and if so, whether the Customs Authorities would be liable to pay the same or not is not required to be answered and is a matter which should be sorted out between those two Corporations and the Customs Authorities. But so far as the owner of the goods is concerned, he having been absolved of any liability to pay the demurrage charges by virtue of the judgment of the Delhi High Court dated 9-9-1994 in CWP No. 1604 of 1991 [1995 (79) E.L.T. 197 (Del.).], he would be entitled to get the goods released without payment of the detention and demurrage charges." "8....On account of non-release, the imported goods incurred heavy demurrage charges but the Customs Authorities themselves gave an undertaking before the High Court that in the event the goods are found to be synthetic waste, then the Revenue itself would bear the entire demurrage and container charges. Further the Chief Commissioner of Customs, later had ordered unconditional release of the goods and yet the goods had not been released. It is under these circumstances and in view of the specific undertaking given by ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....directed to be released, without the payment of the demurrage charges, the importer must have got the goods released. Having regard to the fact situation of the present case, it would be meet and proper for us to direct Shipping Corporation and Container Corporation, if an application is filed by the Customs Authorities to waive the demurrage charges. The appeal is disposed of accordingly." (ii) Donald & Macarthy (P) Ltd. v. Union of India, 1997 (89) E.L.T. 53 (Cal.): "63. Keeping in mind the various decisions cited on behalf of the parties, particularly the decision in the International Airports Authority Case and in the case of Padam Kumar Agarwalla (supra) and the guidelines issued by the Central Government under Section 111 of the Major Port Trust Act, 1963, I am of the view that, although, the importer/consignee cannot be absolved of his liability to pay the demurrage and port charges, actual burden of payment of such dues should be shifted to the person or authority responsible for the delay in lifting of the goods." (iii) Sujana Steels Ltd. v. Commissioner of Customs & C. Ex. (Appeals), Hyderabad - 2002 (141) E.L.T. 343 (A.P.): "13. In other words, the Central Wa....
X X X X Extracts X X X X
X X X X Extracts X X X X
....g for the respondents 1 to 3 Customs authorities in that regard is not tenable." "15. Keeping in mind the various decisions of the Supreme Court referred to above, particularly the decisions of the Supreme Court in the case of International Airports Authority (supra) and in the case of Padam Kumar Agarwalla (supra) we are of the considered opinion that though the petitioner company being the importer cannot be absolved of its liability to pay the storage and demurrage charges, the burden of paying such dues should be shifted to the Customs authorities who are found to be responsible for the delay in lifting of the goods. Such a course of action is appropriate and necessary in order to respect the postulates of reasonableness and non-arbitrariness flowing from Article 14 of the Constitution." "16. We, accordingly, allow the writ petition. A direction shall issue to the respondents 1 to 3 Customs authorities to pay the demurrage and other dues to the fourth respondent in respect of the goods in question within 15 days from the date of receipt of a copy of this order, and, therefore, permit the petitioner Company to lift the goods subject to it performing other formalities, if a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ce. 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 been set aside by the Courts or Tribunals then in every such case the Court should grant a relief of making payment of demurrage charges by th....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hin the period of 6 months from the date of payment of demurrage charges. Obviously, the authorities have acted under a grossly erroneous perception, but, woefully enough, the Department has not chosen to challenge their orders. This, however, would not entitle the importer to get the benefit, which is not due to them from the Customs Department." (iv) Apollo Paper Mills Ltd. v. Union of India, 2006 (206) E.L.T. 106 (Bom.): "24. In the present case, the petitioner had imported the goods even before the application of the petitioner for Project Import Certificate was processed by the Government of India. Having imported the goods in anticipation that the Project Import Certificate will be granted, it is not open to the petitioner to blame the Government for the delay in issuing the Project Import Certificate. Similarly, the time taken by the Customs authorities in registering the project under the Project Import Regulations in view of the clause contained in the certificate dated September 23, 1995 cannot be said to be unreasonable. The fact that the said certificate dated September 23, 1995 has been ultimately accepted by the assessing officer does not mean that the doubt ent....
X X X X Extracts X X X X
X X X X Extracts X X X X
....w of the matter, we are of the opinion that the delay in clearance of the 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." (vi) Padam Kumar Agarwalla v. Additional Collector of Customs, Calcutta, 2004 (177) E.L.T. 18 (S.C.): "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 possession of the customs authorities. But, admittedly, those goods are in possession of the Port Commissioners. In law, they have a lien over the goods for the rent and other charges due to them. Someone 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 ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....hed between export and import products. Later, the petitioner agreed to clear the goods on merit and on payment of duty. When the petitioner presented the Bill of Entry, dated 30-6-1997, to the respondents, declaring the value of the said goods at USD 310/MT, the said value was enhanced to USD 1800/MT by the second respondent. 13. After many trials and tribulations, the value of the goods was finalised at USD 310/MT by the second respondent vide his Order-in-Original No. 557/99, dated 22-8-1999, accepting the declared value under Rule 4 of the Valuation Rules, 1998. The said order has attained finality, as the same has not been challenged. Therefore, as per the said order, the petitioner has to clear the goods on merit by paying appropriate duty. Pursuant to the said order, the petitioner, vide his representations dated 27-8-1999 and 22-9-1999, requested the respondents to issue Detention Certificate for waiver of demurrage. Since the said representations remained unattended to, the petitioner filed W.P. No. 19632 of 1999, praying for a direction to the respondents to dispose of the representations, whereupon this Court, on 17-12-2003, directed the respondents to consider the re....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he petitioner had not challenged the said order of rejection. Instead, he filed this writ petition, seeking for a direction to the Customs authorities, which, strictly speaking, is not maintainable. 17. However, since the respondents have stated in the Detention Certificate that the detention is due to no fault or negligence on the part of the petitioner, in order to give equitable remedy, I feel, the respondents have to be mulcted with liability for the period of detention. 18. Though Section 155 of the Customs Act, 1962, provides protection of action taken under the Act i.e., no suit, prosecution or other legal proceedings shall lie against the Central Government or any officer of the Government or a local authority for anything which is done, or intended to be done in good faith, in pursuance of this Act or the rules or regulations, in view of the admission of the Customs authorities in the Detention Certificate that the detention of the goods was due to no fault of the petitioner/importer, the Department cannot escape the liability. 19 A perusal of the Detention certificate, dated 13-2-2004, issued by the first respondent, speaks to the effect that "the detention is du....