2023 (1) TMI 310 - HC - Customs

Seeking release of the consignment - sale of goods after import - seeking cancellation of the previous bill of entry filed with the customs, and permit the Petitioner to file a new bill of entry as per new consignee - levy of demurrage charges - HELD THAT:- The situation in the present case is that though the out-of-charge process was undertaken by the importer way back in August, 2022, the said importer has not paid the customs duty and taken clearance of the goods. In effect therefore he has abandoned the goods. The importer has also not paid the detention/demurrage charges and till date the goods are lying with the customs authority. The Petitioner has already received the original bill of entry and other documents from the Bank, which would therefore show that the title of the goods has, in fact, passed to the Petitioner.

A perusal of the judgment in Agrim Sampada [2004 (1) TMI 86 - HIGH COURT OF DELHI] clearly shows that the original importer in the said case, who had to make payment on cash against delivery basis, had abandoned the same and under such circumstances, the Court had held that the party similarly situated as the Petitioner is entitled to present the original bill of entry to the customs authority, upon which the goods have to be cleared.

The issue of payment of demurrage has been considered by several decisions of the Supreme Court and of this Court. On the question of demurrage, the Supreme Court in INTERNATIONAL AIRPORTS AUTHORITY VERSUS GRAND SLAM INTERNATIONAL OF INDIA [1995 (2) TMI 70 - SUPREME COURT], held that the demurrage would be liable to be charged even if there was fault on the part of the customs authority.

Whether the demurrage would be liable to be paid by the Petitioner insofar as the customs duty and the interest? - HELD THAT:- These circumstances would clearly show that until December, 2022, the abandonment could not have been concluded by the Customs authorities, at the importer's instance as the out-of-process charge had already been done. Therefore, the customs authorities could not have presumed change in ownership till December 2022. If the goods are not released to the Petitioner, the authorities would follow the procedure prescribed in law and recover the demurrage which they are obviously entitled to recover. However, the Petitioner herein is seeking release of goods due to change in ownership of goods on the strength of the original documents having been released in its favour and the Importer having not cleared the goods. The short question that arises is whether, the Petitioner can claim that it is not liable to pay any demurrage.

The Petitioner shall pay the customs duty and interest - Insofar as the detention/demurrage charges are concerned, since there is no explanation for the delay between September 2022 to December, 2022 and the first representation itself was made on 3rd December, 2022, the Petitioner would be liable to pay 50% of the detention/demurrage charges payable till 3rd December, 2022 as also demurrage charges for the period from 3rd December, 2022 till date - petition disposed off.