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1997 (10) TMI 65 - SC - CustomsWhether the defendants were the importers and/or owners of2. the goods mentioned in Para 4 of the plaint, as alleged in Para 6 of the plaint? Whether the defendants are bound and liable to pay to the plaintiffs a sum of ₹ 1,58,545.10 as per exhibit `B' to the plaint or any part thereof either with interest at the rate of 12% per annum or at any other rate? To what reliefs are the plaintiffs entitled? Held that:- The witness went on to admit that the order of confiscation was also addressed to appellant No. 1 by the Customs authorities. Mr. Nariman, on the basis of the evidence of this witness and the documents on the record, submitted that appellant No. 1 was the "consignee" or the "owner" or the "agent" for the goods in question and, therefore, the Port Trust was justified in fastening the liability of recovering demurrage charges from it. The obligation to pay the charges of the Port Trust, till the confiscation of the goods as already observed, that of the party which had the duty to remove/receive the goods and had failed to do so. In the instant case it was the appellants, who admittedly had acted as holders of the Letters of authority and were the licensee's agents for clearance of the consignment from the customs and entitled to receive the goods which they failed to receive and clear. They could therefore be fastened with the liability to pay charges by way of demurrage etc. to the Port Trust. No merit in the submission of Mr. Tripathi that the Port Trust could have put the goods in question to sale to off-set the demurrage since they had a lien over those goods before making any claim on the appellants. The goods, as already noticed, stood confiscated by the Customs Authority vide order dated 28th February, 1976 under Section 111(d) of the Customs Act, 1962 read with Section 3(2) of the Import and Export (Control) Act, 1947. The option to redeem the goods on payment of fine/penalty of ₹ 2 lakhs in lieu of such confiscation under the provisions of Section 125 of the Customs Act, 1962 was to be exercised by the appellants, to whom notice was issued by the Customs Authority within a fortnight to redeem the goods. That option was never exercised. Since, the goods stood already confiscated, the submission that those goods could have been sold to off-set the demurrage charges is fallacious. The goods confiscated by the Customs Authority were not available to the Port Trust for appropriation towards their dues. Section 63 of the Major Port Trusts Act, 1963, in the facts and circumstances of this case, does not come into play at all. Since, the obligation to clear the goods was that of the appellants and they had failed to clear those goods, they cannot escape their liability to pay the charges to the Port Trust including demurrage. The liability of the appellants in the facts and circumstances of the case, has been correctly fastened by the Division Bench of the High Court. Assessee appeal dismissed.
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