TaxTMI 
TaxTMI 
TaxTMI 
2016 (3) TMI 1035
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....jor Port Trusts Act, 1963 to submit, the Board in effect did not apply its mind to the case for waiver made by the petitioner. Mr. Bharadwaj, learned Advocate appearing on behalf of the Customs submitted the said authority had also applied for waiver of demurrage charges said to be payable by it. On a reading of paragraph 9 in the impugned order as well as the statements made in the affidavit in opposition, filed and copy served today, the case of the said authority was it did not have notice of the hearing and thus was unrepresented. Mr. Bose, learned Senior Advocate appearing on behalf of the Kolkata Port Trust, submitted his client was entitled to exercise powers under Section 61 of the said Act to deal with the goods as provided thereunder. By orders passed in an earlier writ petition and appeals arising therefrom, his client had been restrained from so dealing with the goods. Ultimately, when this writ petition was moved, there was order dated 5th September, 2006 made, inter alia, restraining his client from disposing of the goods of the petitioner till the disposal of the writ petition. Mr. Bose urged that there be adjudication and finding of Court regarding his contention ....
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.... Board in rejecting the claim for demurrage was properly made and there was no cause for interference as the same could not be said to be extravagant or capricious or not an exercise made judiciously. Mr. Bose also relied on another decision of the Supreme Court in the case of the Board of Trustees of the Port of Bombay vs. Indian Goods Supplying Co. reported in AIR 1977 SC 1622, to portions of paragraphs 10 and 14 thereunder, which are reproduced below: "10) ............................................................... As the scale of rates are framed by virtue of the statutory powers conferred on the Board under S.43 and as the rates have been approved by the Central Govt. under S.43B the rates have the force of law and cannot be questioned. Taking into account the hardship to the importers certain concession has been given but the legality of the rates which are being levied according to law cannot be questioned...........". "14) The position therefore is that even though the delay in clearing the goods was not due to the negligence of the importer for which he could be held responsible yet he cannot avoid the payment of demurrage as the rates imposed are under the authori....
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.... submissions made by the petitioner, which are reproduced below: "6. In support of their application for waiver of demurrage, DMPL vide their letter dated 29.92005 stated the following :- a) The scale of Rates of KoPT had been framed for the purpose of imposing demurrage on goods lying in the port area in order to ensure that no person was allowed to use the port area as his own warehouse. b) Demurrage was not an absolute liability but was always based on fault. There must be a willful attempt on the part of the person to utilize the port area as his own warehouse for storing the goods before demurrage could be imposed on him. c) Person who was not at fault and/or was always ready and willing to take delivery of the materials from the port area but was prevented by Govt. Dept. from doing so, could not be saddled with demurrage charges. d) Before arrival of the goods at Kolkata Port, attempts were made by them to have the goods re-shipped as soon as the Indian purchaser had expressed its intention not to take delivery of the goods. e) Had DMPL been allowed to re-ship the goods and the goods not been detained on frivolous grounds by the Custom authority, demurrage wou....
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....reference to the guidelines for waiver of demurrage charges on import cargo. The reasoning in the impugned order would appear from paragraph 9 of the same as is reproduced below: "9. The application made by the petitioner dated 29.9.05, application made by the Custom Authority dated 28.9.05, documents and records placed as well as the oral submission made by the advocates for the petitioner have been considered by the Board. It reveals that :- a) The goods in question were imported to India but at present, the exporter has been allowed by the Hon'ble Court to re-ship the cargo. For the re-shipment of the cargo, the same would attain the status of "export cargo". At present, there is no guideline for waiver of demurrage charges on export cargo but there is an approved guideline for waiver of demurrage charges on import cargo (a copy of the same is printed at Appendix-I). For the purpose of considering the instant applications for waiver of demurrage charges, the aforesaid approved guideline will be relevant as the accrued demurrage is for the import leg only. As per the said guideline, port may waive demurrage only when the port is not able to deliver the goods in time. Neither....
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.... special cases and for reasons to be recorded in writing, exempt either wholly or partially any goods or vessels or class of goods or vessels from the payment of any rate or of any charge leviable in respect thereof according to any scale in force under this Act or remit the whole or any portion of such rate or charge so levied." The said Section does not indicate the person(s) liable to pay the demurrage, which might be exempted or remitted in exercise of discretion provided thereunder. The Board, as it appears from the reasons recorded in the impugned order, had considered the claim of the petitioner with reference to the guidelines for waiver of demurrage on import cargo, there being no guideline for export cargo. The contention of the petitioner however did not have any reference to itself as importer or to the guidelines for waiver of demurrage charges on imported cargo. The reasoning given in the impugned order proceeded to treat the goods as imported cargo at least for a while of the entire period that it lay in the custody of the Port Trust and still lies. The Board said the approved guidelines (for import cargo) will be relevant as the accrued demurrage is for the impor....