TaxTMI 
TaxTMI 
2023 (3) TMI 184
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....ined by the respondent no.2 on 06.01.2021. This, according to the petitioner, was causing huge financial loss and therefore, the petitioner sought the following reliefs:- "It is, therefore, most respectfully prayed, that in conspectus of the facts, circumstances and grounds mentioned herein supra, this Hon'ble Court may graciously be pleased to: (a) Issue a Writ of Mandamus or any other appropriate Writ, direction or order directing learned Respondents to release the consignment imported under B/E No. 4956991 dated 06.08.2021. (b) Issue a Writ of Mandamus or any other appropriate Writ, direction or Order directing learned Respondents to either pay themselves or to waive the payment of demurrage detention and any other charges. (c) Issue Rule Nisi in terms of prayers at (a) and (b) above and confirm the same after hearing the parties; (d) Pass ad-interim ex-parte order in terms of prayer at (a) and above; (e) Award cost of this Petition; and/or (f) Pass such other order(s) or direction(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in favour of the Petitioner in the intere....
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....k, the petitioner has preferred the present petition. 2.1. The respondent no.3 vide letter dated 02.02.2022 directed the Deputy Commissioner, Dock Examination to release the subject goods and vide letter dated 04.02.2022 directed the respondent no.5 not to charge any detention charges on the subject consignment till the clearance as per Regulation 10(1) of Sea Cargo Manifest Transport Regulations, 2018 ('the Regulations' hereinafter). 2.2. The petitioner forwarded this communication of 04.02.2022 to the respondent no.5 and requested the respondent no.5 to waive the demurrage and issue the delivery order through several e-mails, but, it denied the request and insisted on the payment of the demurrage charges and hence, this petition with the following prayers:- "(a) Issue Writ of Mandamus or any other appropriate Writ or order(s) directing Respondents to release the consignment imported under B/E No.4956991 dated 06.08.2021 without charging demurrage/detention. (b) Issue Writ of Mandamus or any other appropriate Writ or order(s) directing Respondent No.5 to waive off demurrage and detention charges; or in alternative (c) Issue Writ of Mandamus or any ....
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....Customs to pay the detention charges to the Shipping Line since these were to be paid on the basis of a contract between the respondent-importers and the shipping line. In view of the above discussion, the appeals are allowed. The judgment of the High Court is set aside and the writ petitions filed by the respondent-importers are dismissed. No order as to costs. Pending application(s), if any, stand(s) disposed of." 4. In the aforesaid context, Mr. Tirth Nayak, the learned counsel appearing for the writ applicant invited our attention to one order passed by this Court in the case of Green Gold Timbers Pvt. Ltd. Through Its Directors Akhilesh Manglik Vs. Commissioner of Customs in Special Civil Application No.10082 of 2020 decided on 12.01.2022, wherein this Court took the view that the customs cargo service provider as defined in the Regulation No.2(1) (b) of the Regulations is not entitled in law to charge any rent or demurrage on the goods seized or detained or confiscated by the Customs or any other Authority. However, according to Mr. Verma, the order of this Court in the case of Green Gold Timbers Pvt. Ltd. (Supra) is with respect to ground rent charges and not helpfu....
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..... The overseas local agent of the respondent in USA i.e. Hapag Lloyd (America) LLC received a booking from the consignee OL USA LLC having address at 998, Riverwalk, Parkway, Suite 204, Rock Hill, NC 29730, USA for booing one container for transportation of its consignment of 750 Bales of Chinese Knotted Woolen Carpets from Charleston Port to Gandhidham, Gujarat. Accordingly, the respondent's overseas agent booked the container and issued its booking confirmation number 67060695 and also issued the Sea Way Bill as well as the Bill of Lading on 09.07.2021. 4.3. There was a transportation contract executed between the consignor, consignee, owner of goods as well as the notified consignor in India, who is to receive the same from the present respondent. The Sea Way Bill/ Bill of Lading issued by the respondent acts as a binding contract between the parties to an international shipping transaction. This has been repeatedly recognized by the Apex Court whereas it has held that the terms of the Bill of Lading is a contract of carriage between the parties which is a legal and binding contract and it can be enforced under the law. The parties to the shipping transaction i.e. the consign....
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....s DRI was held to be illegal and therefore, the release was directed under order and judgment dated 07.01.2022. The said order was passed and was passed in different set of facts and circumstances as the seizure and detention of the petitioner's consignment was by done by the other respondents who are statutory public authorities. The present respondent is only a carrier of the goods and not a public authority. It was not a party in the previous petition and was not heard while directing the release order on 07.01.2022. The direction for release of goods issued in the previous petition was only to the other respondents and not to the present respondent. In this set of facts and events, the grievance of the petitioner against the respondent - public authorities had already been addressed by the Court by its previous order and the public authorities are directed to release the cargo where their role has come to an end. 4.8. The only question that survives is between the petitioner and the present respondent who are the private parties. The respondent had denied releasing of the petitioner's cargo as there are heavy container detention charges payable on the said cargo. The said ch....
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....ion to comply with the letter dated 04.02.2022 which is illegal and contrary to law and clearly violates the rights of the respondent to demand its genuine container detention charges. The respondent is an entity engaged in the business of lending containers on hire and on that revenue, the company runs. Therefore, the said containers are valuable business assets and therefore, the customs cannot be given unfettered right to detain the said containers and then direct waiver of detention charges which is demanded under a contractual agreement between the importer and the shipping line. 5. The affidavit-in-reply on behalf of the respondent nos. 1 to 4 is by the Deputy Commissioner in the office of Commissioner of Customs, Custom House Mundra wherein it heavily relied on the provisions of Sea Cargo Manifest and Transshipment Regulations, 2018, more particularly Regulations 10, 11 and 12. 5.1. Regulation 10 states that, it is the responsibility of the authorized carrier not to demand any container detention charges for the containers laden with the goods detained by customs for purpose of verifying the entries made under Section 46 or Section 50 of the Act, if the entries are fou....
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....High Court could not in writ proceedings have directed the DRI/Customs to pay the detention charges to the Shipping Line since these were to be paid on the basis of a contract between the respondent-importers and the shipping line. In view of the above discussion, the appeals are allowed. The judgment of the High Court is set aside and the writ petitions filed by the respondent-importers are dismissed. No order as to costs. Pending application(s), if any, stand(s) disposed of." 6.1. The Madras High Court in case of M/s. Isha Exim vs. Commissioner of Customs and others [Writ Petition No. 26838/2018] has held that the claim for detention and demurrage charges and the exemption or refund thereof is a matter of adjudication and cannot be decided in a writ proceedings. 6.2. The Division Bench of Delhi High Court in case of International Lease Finance Corporation vs. Union of India and Others [Civil Writ Petition No. 6490/2018] has held that warehousing is a commercial activity and Courts cannot direct waiver of demurrage charges to the service providers. 7. The petitioner has pleaded for the enforcement of the order dated 04.02.2022 which is an order of the customs authority to....
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.... Mumbai Port Trust is a statutory authority created under the Major Port Trusts Act, 1963 (for short 'the Act'). A Major Port Trust is managed by the Board of Trustees appointed under Section 3 of the Act. The works and services to be provided by the Trust at the Major Ports are set out in Chapter V of the Act. Chapter V-A which was introduced with effect from 09.01.1997 provides for fixation of tariff for Major Port Trusts. The tariff to be charged by the port trust is determined by an independent statutory authority, called the Tariff Authority for Major Ports, under Section 47A of the Act. 46. We are, therefore, clearly of the view that even though there may be some delay on the part of the DRI and the customs authorities, the respondent-importers have also been guilty of delaying the matter and, therefore, they cannot claim that they are not liable to pay demurrage and detention charges. We may, however, clarify that the respondent-importers are free to approach the Mumbai Port Trust in terms of Section 53 of the Act for exemption and remission of demurrage and other charges and the Board may take a sympathetic view while considering the case of the respondent-importer....
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....ent yarn from Korea to India. The port of load was Busan in Korea and the port of discharge was Bombay in India, but the place of delivery of goods was ICD, Delhi. The goods thus being brought to the port of Bombay were discharged but there had been no customs clearance at Bombay and the sealed container was transhipped to ICD, Delhi, where it remained with the Container Corporation of India. The Shipping Corporation of India is engaged in the business of carriage of goods. On the terms and conditions contained in the Bill of Lading, in respect of the goods consigned to it, the corporation claims that the goods cannot be released unless demurrage charges are paid. After the goods arrived in Delhi and remained in the custody of the appellant, the customs authorities being of the opinion that import of polyester filament yarn weighing 5,376 kgs. was unauthorised and directed confiscation of the same, valued at Rs.11.5 lakhs under Section 111(d) of the Customs Act, 1962. The said customs authorities however permitted the owner to redeem the goods on payment of Rs. 7 lakhs. That apart, a penalty of Rs. 1 lakh was also levied under Section 112(a) of the Customs Act. The owner o....
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....e Bills of Lading had a lien over the goods, until the dues are paid had not been made a party to the aforesaid writ petition. At this stage it may also be noticed that during pendency of the writ petition in the High Court, an interim order had been passed, entitling the owner to take release of the goods on payment of Rs. 5 lakhs to the customs authorities and a bank guarantee of Rs. 5 lakhs but the owner had not taken advantage of the said interim order and the goods continued to remain in the custody of the present appellant and demurrage charges went on accruing. The order of Delhi High Court was assailed in this Court by filing a Special Leave Petition by the Customs Authorities but that Special Leave Petition however stood dismissed on 13.11.95 in SLP No. 5671/95. The owner of the goods having failed in his attempt to get the goods released, notwithstanding the orders of the High Court in CWP No. 1604/91, filed an application for initiating a contempt proceeding, which was registered as CCP No. 120/95. The High Court however came to hold that the authorities cannot be held to be guilty of disobeying the orders of the Court and accordingly, dismissed the contempt petition. ....
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....lay. This batch of cases were listed before a Bench of two learned Judges on 11th February, 2001 and after hearing the matters for sometime, the Bench felt that there appears to be some inconsistency between the decision of this Court in Union of India vs. Sanjeev Woolen Mills, 1998(9) SCC 647 and the Grand Slam Internationals case reported in 1995(3) SCC 151 and as such observed that the cases should be placed before a Three Judge Bench and that is how, this batch of cases are before this three Judge Bench. When these appeals by grant of special leave were placed before the Three Judge Bench on 1st March, 2001, we had directed the goods be released to the owner without any conditions but such release will be subject to the ultimate decision in these appeals. 4. In view of the submissions made at the Bar appearing for different parties, referred to earlier, the first question that arises for consideration is whether in the case in hand, the importer of the goods can be made liable to pay any demurrage/detention charges? It is undisputed that under the terms and conditions of Bills of Lading, the carrier had a lien over the goods until all the dues are paid and the goods ha....
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....y between the ratio in Sanjeev Wollen Mills and the Judgment of this Court in Grand Slam. That apart, the judgment in Grnd Slam was a three judge bench judgment. In the case in hand, as has already been stated earlier, the earlier judgment of Delhi High Court dated 9.9.94 in C.W.P. No. 1604/91, has become final, which entitles the importer to get the goods released without payment of the detention and demurrage charges. In the contextual facts, notwithstanding the judgment of the High Court, the goods not having been released, the impugned order and direction dated 18.1.99, cannot be held to be infirm in any manner. In the absence of any provision in the Customs Act, entitling the customs officer to prohibit the owner of the space, where the imported goods have been stored from levying the demurrage charges, levy of demurrage charges for non-release of the goods is in accordance with the terms and conditions of the contract and as such would be a valid levy. The conclusion of the High Court to the effect that the detention of the goods by the customs authorities was illegal and such illegal detention prevented the importer from releasing the goods, the customs authorities would be ....
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....art of the respondent no.5 is that unless the container detention charges are paid, he cannot be permitted to lift the goods as his client has a contractual lien. 10.2. As held by the Apex Court in case of Mumbai Port Trust vs. M/s. Shri Lakshmi Steels and Ors. (supra), this Court had already permitted the petitioner to approach the respondent authority for exemption and remission of demurrage for the authority concerned to take a sympathetic view while considering the case of the petitioner. At the same time, the detention charges of the shipping lines are to be paid on the basis of the contract between the petitioner and the shipping line. The Apex Court had been quite clear that the High Court cannot in writ proceedings direct the DRI/Customs to pay the detention charges to the shipping line, firstly because there was a contract between the importer and the shipping line and moreover, under the writ jurisdiction, these aspects are not to be adjudicated as there are many aspects on facts which would need the proper adjudication. 10.3. It is quite clear from the chronological events that the period of four months for which the consignment comprising the Chinese Knotted Woole....
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....s aspect. 10.6. The Court also cannot be oblivious of the fact that the request was made in the previous petition by the petitioner to allow him to empty the container to the public warehouse under Section 49 in order to save the demurrage and detention charges. Both respondent nos. 1 and 3 in earlier petition were made such a request. It was further a request that the investigating officer cannot detain the goods without seizure under Section 110 of the Customs Act. The issue of Circular Trading of the Carpets was being examined by the authority concerned. The provisional assessment of the goods of the imported consignment had been put on a halt as the three summons were not answered by the petitioner. 10.7. It appears that without passing any order of seizure under Section 110 of the Customs Act, when there was a detention and there was a specific denial for shifting the goods to the public warehouse under Section 49 in order to save the demurrage and detention charges, the respondent authority cannot insist on the demurrage which is in its hand. So far as the detention charges are concerned, in our opinion, the contract of the parties would govern the detention charges if ....