TaxTMI 
TaxTMI 
TaxTMI 
2016 (8) TMI 674
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....he Port Trust by Vessel M.V. Serpentine on 07.08.2014. Further, one M/s. Suzlon Energy Limited also imported 919 Nos. (5142.75 Metric Tonnes) of steel plates which arrived in the same vessel for which the fourth respondent acted as custom broker. According to the petitioner, in respect of the cargo imported by the petitioner, the end user is M/s. Suzlon Limited, who purchased the steel plates from the petitioner. Thus, the entire cargo of steel plates arrived by the vessel M.V. Serpentine contains 458 pieces of steel plates imported in the name of M/s. Shah Brothers Ispat Pvt Ltd to which the petitioner is the customs broker and 919 pieces meant only for M/s. Suzlon Energy Limited. According to the petitioner, the bill of lading in respect of both the cargo clearly discloses the description of the cargo meant for the petitioner and the fourth respondent and they can be easily segregated due to their distinct dimension. On 07.08.2014, the Vessel arrived Chennai and discharge of the cargo from the vessel commenced on 12.08.2014. As customers broker, the petitioner submitted the Bill of entry corresponding to 458 Nos. of steel plates and obtained customs and port clearance for taking ....
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....etention of the balance 24 pieces of steel plates, M/s. Shah Brothers Ispat Pvt Ltd., to whom the petitioner acted as customs broker, suffered huge loss as they could not honour their commitment to the customers. In any event, the amount of Rs. 21,07,575/- collected from the petitioner is unlawful and therefore the petitioner has filed this writ petition. 3. The learned counsel appearing for the petitioner would vehemently contend that demurrage can be levied only if it is shown that the delay in clearing the goods is attributable on the part of the importer or the customs broker engaged by the importer. In this case, the petitioner as well as the importer - M/s. Shah Brothers Ispat Pvt Ltd., have sent repeated letters seeking permission to release the balance goods, but the goods were not released to the petitioner on the ground that the cargo meant for the importer of the petitioner and the fourth respondent got mixed up. It is not the case of the respondents 1 to 3 that the delay in clearing the goods is attributable either on the part of the petitioner or the importer to whom the petitioner is acting as a customs broker. In fact, even as early as on 19.08.2014, the petitioner ....
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....trol Board and others vs. Kanoria Industrial Limited and another) (2001) 2 Supreme Court Cases 549 and (iii) (Saloni Tea Co Ltd., and others vs. Superintendent of Taxes, Nowgong and others) (1988) 1 Supreme Court Cases 461 to contend that when the levy of taxes or charges is held to be unconstitutional and arbitrary, High Court, in exercise of power under Article 226 of The Constitution of India can issue a Mandamus for refund of the amount. Merely because the amount has been paid to the Government or instrumentalities of the Government, it cannot be said that the Court cannot issue a direction for refund of the amount. 6. Per contra, the learned counsel appearing for the respondents 1 to 3, relying on the counter affidavit of the first respondent, would contend that the writ petition is not maintainable before this Court and the remedy available to the petitioner is only to file a civil suit before the Civil Forum inasmuch as there are disputed quesitons of fact involved in the case. It is further contended that the respondents 1 to 3, being a statutory body governed by the Ministry of Shipping, Government of India, is one of the major ports established as a custodian of cargo. E....
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....to pay demurrage inasmuch as even the No Objection Certificate was produced by the petitioner at a much later date on 15.11.2014. According to the learned counsel for the respondents 1 to 3, the petitioner, being a customs broker is jointly liable to pay the demurage along with the principles for whom they are acting as agent. However, the principle has not come forward with any claim but only the petitioner, being a customs agent alone has filed this writ petition. 8. The learned counsel for respondents 1 to 3 would contend that the prime duty of the Port Trust is to deliver the cargo to the right owner as per documents produced for clearance of goods. The allegation of the petitioner that the goods imported by petitioner and fourth respondent are having distinctive feature and easily identifiable are incorrect. The fact remains that the consignment handled by the petitioner itself are of different dimensions and the fact of mixing up of the cargo had also been admitted by the petitioner in the letter dated 09.09.2014. It is further submitted that there was a dispute between the petitioner and the fourth respondent and therefore, the petitioner has obtained No Objection Certifica....
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....o the effect that there was a mix up of cargo imported by the importers of petitioner and fourth respondent. In other words, the petitioner was permitted to take 95% of the goods until 19.08.2014 and thereafter, they were restrained from clearing the remaining goods on the ground of purported mix-up of cargo. 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. 11. As far as the respondents 1 to 3 are concerned, they have issued a notice dated 24.10.2014 to the petitioner calling upon them to clear the cargo. The petitioner was also intimated i....