TaxTMI 
TaxTMI 
2007 (10) TMI 32
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....ate Tribunal (CEGAT) by an appeal. The Tribunal set aside the order of the Collector and remanded the matter to the Additional Collector. The latter heard the petitioner, furnished them the materials on which the department relied, and passed his order. Relying on the invoice value of imports made by M/s. Enterprises he enhanced the value from US $ 13 per piece to Rs. 151.36; he directed confiscation of the goods and gave option to the petitioner to pay redemption fine of Rs. 50,000/- and a penalty of Rs. 1,50,000/- by order dated 15-1-1991. 4. Against the said order, the Petitioners preferred an appeal to CEGAT. The CEGAT disposed the appeal, by its order of 23-5-91 [1992 (58) E.L.T. 126 (Tri. - Del.)] holding that the price of goods imported by M/s. Durga Enterprises could not be the basis for valuing the petitioner's goods. It modified the valuation and held as follows : '15. We have rejected the invoice of M/s. Durga Enterprises. The next question for consideration is whether the price declared by the appellants should be accepted for the purpose of determining the assessable value under Section 14(1) of the Act. The appellants declared the pride at the rate of Singapore ....
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....he CEGAT allowed the application, by its order 20-12-1991 [1993 (65) E.L.T. 414 (Tri. - Del.)], holding that : 4. On a consideration of the material on record and the arguments advanced by the counsel during the course of the final hearing is noted in our books, we found that the appellants advanced an argument that if the goods are imported over and above a particular quantity they are entitled to quantity discount. This aspect we have by oversight not considered in the order. Therefore, we consider the said argument now. While holding the assessable value should be on the basis of 1159 Yen, we referred to the offer dated 5-6-1990 made by M/s. Bhalla and Co. to the appellants. In the said offer it is mentioned, 'goods worth Japanese Yen 600000 per shipment, % of discount will vary upon the quantity over and above the minimum quantity'. 5. Admittedly the appellants have purchased more than the minimum quantity i.e. 6 lakhs Japanese Yen. Therefore, they are entitled to discount as claimed by them. We accept the contention of the appellant that after giving the discount the price declared by them is more or less the same. Therefore, we accept the invoice price and set aside the....
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....; Sd/- Chief Justice Sat Pal (J) 26th February, 1992 8. The Petitioner contends that it cannot be saddled with the liability to pay demurrage cha....
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....cals v. UOI, 2002 (140) E.L.T. 353 (Del) and judgment of this Court in Agrim Sampada Ltd. and Anr. v. Union of India and Others, 2004 (168) E.L.T. 15 (Del.) = 2004 (72) DRJ 783. It is now well- settled that if the Customs Authorities are at fault in detailing the goods wrongly, the Court would be justified in exercising power under Article 226 of the Constitution, to direct that payment of demurrage charges should be made by such authorities and not by innocent importer/consignee. Learned counsel contended that in the facts of this case the Customs Authorities initially made an adjudicatory order, which was in reach of principles of natural justice; the matter was accordingly remanded by the CEGAT. The Additional Collector of Customs, again, by his adjudicatory order, rejected the valuation and directed payment of duty on the higher valuation determined by him. He further imposed penalty. That order was carried in appeal to the CEGAT which set aside the direction to pay penalty. Later it rectified its order and accepted the valuation initially made by the Petitioner. 11. Learned counsel contended that in the circumstances of this case, the initial stand of the Petitioner stood v....
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....orter is innocent of any wrongdoing and is established to be so in appropriate proceedings finally, nevertheless to pay the demurrage charges, its liability cannot be extinguished. In the facts of a given case, however, it is open to the Airport or Port Authority or Warehouse Corporations, to remit or waive the demurrage. Having regard to the facts in this case that power was exercised reasonably. 14. Learned counsel also contended that invocation of undoubted jurisdiction in bona fide exercise of the adjudicatory power cannot, unless a litigant proves mala fide or shows palpable unreasonableness, lead to liabilities on the Customs Authorities. Reliance was placed on Grand Slam International as well as the judgment in Shipping Corporation of India. It was submitted that in the latter case the Supreme Court upheld the order casting liabilities on the Customs Authorities since there was an express undertaking given by them before the High Court to pay demurrage charges, in the event of their not succeeding on the merits. Such directions cannot be construed as laying down a universal proposition that wherever an importer finally succeeds in the adjudication proceedings, or before e....
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...., the Supreme Court construed the definition of 'owner' in Section 3(5) of the Bombay Port Trust Act and S. 2(o) of the Major Port Trust Act to include a 'consignee'. There, the consignment had to be cleared from the ware house of docks at the Port of Bombay, which was not done. The Customs Authorities confiscated the goods. The Port Trust demanded demurrage charges till the date of confiscation. The right of the Port Trust to recover the demurrage charges was upheld. The submission that since the goods stood already confiscated they could have been sold to offset the demurrage charges were rejected. 19. It is thus clear from the above judgments, of the Supreme Court that port, airport Authorities and warehousing corporations are entitled to demurrage for the imported goods in their custody. The importer/consignee is liable for those charges even for periods during which it was unable to clear the goods due, to fault of the Customs Authorities and even when goods have been confiscated by the Customs Authorities. These judgments, however, have not dealt with the liability of the Customs Authorities for reimbursement of the said charges for detention of the goods with respect to p....
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.... clear goods from its premises for no fault or negligence on his part. It was held that the Boards were entitled to charge demurrage even in respect of periods during which the importer was unable to clear goods be cause o the detention thereof by the Customs Authorities or the authorities under the Import Trade Control Regulations, which detention were thereafter found to be unjustified. This Court also recognized that the Boards were entities in their own right so that the courts could not direct the Customs Authorities to issue a detention certificate without hearing the Board concerned. This was because the issuance of a detention certificate had the effect of reducing the amount of demurrage that the Board would otherwise have charged." The judgment, after considering the various contentions including the policy for the waiver of demurrage declared as follows : "………..An importer must land the imported goods at a seaport or airport. He can clear them only after completion of customs formalities. For this purpose, the seaports and airports are approved and provide storage facilities and Customs officers are accommodated therein to facilitate clearance. For the occupa....
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....in Shipping Corporation of India did not interfere with the order of the High Court absolving the importer of the liability to pay demurrage charges. The reasons for that are as stated in para 4 of the judgment namely, that there was a specific direction of this Court in that regard and that decision having reached finality by the dismissal of the special leave petition, the liability of the importer to pay the demurrage charged ceased and that question, it was held, cannot be reopened. 25. Thus, on the authority of Grand Siam International, Sun Export Corporation, and Shipping Corporation, it can be stated that the law laid down by the Supreme Court is that the importer/consignee of goods cannot avoid liability to pay demurrage charges to the warehousing/port or airport authorities even though the goods may have been illegally detained in the Customs Area/Bonded Warehouse by the Customs authority. The judgments in Om Petro Chemicals and in Agrim Sampada Ltd, in my respectful view, too broadly state the law; as the above extracts in Grand Slam International, a larger three judge Bench decision would show, the importer has the primary liability. There cannot be an invariable assu....
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....Dictionary, 3rd edition (1953). "In good faith Bankruptcy Act, 1883, would seem to mean innocent of the knowledge, and of the means of knowledge, that there is an adverse bank ruptcy." "A thing is to be deemed to be done in good faith, within the meaning of this Act, where it is in fact done honestly, whether it is done negligently or not." 'That section is obviously founded on the distinction pointed out in Jones v. Gordon (1877) L. R. 2 App. C as. 616, by Lord Black burn, between the case of a person who was honestly, that is, not necessarily with the intention to defraud, but not with an honest belief that the transaction was a valid one, and that he was dealing with a good will." "Sale of Goods Act, 1930 : A thing is done "in good faith" when it is, in fact done honestly, whether it be done negligently or not." Black's Law Dictionary (Eighth Edition) : 'A state of mind consisting of : (1) Honesty in belief or purpose, (2) Faithfulness to one's duty or obligation; (3) Observance of reasonable commercial standards of fair dealing in a given trade or business or (4) Absence of intent to defraud or to seek unconscionable advantage' Under the Limitation Act ....