TMI Blog2001 (12) TMI 306X X X X Extracts X X X X X X X X Extracts X X X X ..... s were tested. They were again tested at the instance of the petitioner by Sri Ram Institute. Tests at the instance of the department were carried out by CRCL on 24-8-99 and report submitted thereafter indicated that the sample contained impurities which were indicative of the nature of used oil containing dry organic matter. 3. On the request of petitioner fresh samples were drawn and a report dated 13-2-2001 was issued from a perusal whereof it would appear that it contains some amount of acid only. Other impurities which were said to be existing in the sample were not found in his sample. Demurrage was being charged @ Rs. 13000/- per day. Admittedly, although the goods were worth Rs. 20 lakhs the amount of demurrage has been charged @ Rs. 4 lakhs per month and the container charges to the tune of Rs. 70 lacs are also being demanded from the petitioner. It is not in dispute that goods are not still cleared and are still lying in containers. A question was mooted at the bar as to whether having regard to the fact that the furnace oil being a hazardous substance should be re-exported at the cost of the petitioner or not. 4. Mr. Rawal, learned Counsel appearing for the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld contend, is mandatory in nature and thus the petitioner in the peculiar facts and circumstances of the case can neither be absolved from such payment but also should be directed to re-export the same. Mr. Jayant Bhushan would urge that developed countries have been selling the used oil at a throw away price as they could not destroy the same, and the oil should be directed to be re-exported at the cost of the petitioner. In view of the rival submissions of the parties as noticed above, the questions which arise for consideration are :- (a) whether the import of oil by the petitioner was legal? (b) Who would be liable to pay the demurrage charges. (c) Whether in the facts and circumstances of the case, a direction for re-export of the oil should be issued ? 6. Re: Question No. 1. It is not in dispute that bills of lading disclose that the petitioner imported furnace oil. The question herein as to whether the said furnace oil in truth and substance is waste oil within the meaning of the provisions of the Hazardous Wastes (Management and Handling) Rules, 1989 and the Manufacture, storage and import of Hazardous Chemicals Rules, 1989 is essentially a ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 4. Water 1% 11. The said guidelines do not have statutory status, as the same had not been issued by any statutory authority pursuant to or in furtherance of any statutory provision. The guidelines of 1977 framed by the Board could not thus have been amended by a resolution adopted by some officers in a meeting. The guidelines issued by the Board are binding on all authorities. 12. The legal position in this regard is no longer res integra. In Poulose and Mathen v. Collector of Central Excise - 1997 (90) E.L.T. 264 law has been stated in the following terms : 15. One aspect deserves to be noticed in this context. The earlier tariff advice No. 83/81 on the basis of which trade notice No. 220/81 was issued by the Collector of Central Excise and Customs is binding on the department. It should be given effect to. There is no material on record to show that this has been rescinded or departed from, and even so, to what extent. Even assuming that the later tariff advice No. 6/85 has taken a different view- about which there is no positive material- the facts point out that the concerned department itself was having considerable doubts about the matter. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed by the Ministry in terms of the provisions in the Customs Act or by the appropriate authority under Environment Protection Act. 15. Mr Jayant Bhushan, very fairly submitted that Central Government had no well equipped laboratory to carry out tests laid down by the Board and thus the new standards have been laid down having regard to the fact that such tests could be carried on in the laboratories in India. 16. A person is bound to act in terms of the law as it exists. Import of furnace oil had been made by the petitioner having regard to the standard thereof as fixed by the statutory authority. The goods imported by the petitioner satisfy the said norms. It is thus indeed a matter of great surprise that the statutory authorities laid down the standard which are not verifiable by tests carried out in any lab. Standards subsequently laid down would not be applicable to the goods which were imported prior to laying down thereof. Only in one of the reports it was opined that the product was not found homogenous in nature. It was further opined that it did have characteristic of furnace oil but on the second list at the instance of the importer, to which it was entitled to the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legal justification to confiscate or impose redemption fine, or penalty, as the goods had already been shipped on various dates i.e. on 26-5-1987 and 25-7-1987. It is no longer in dispute that if the Palm Kernal was not a canalized item before 27-7-1987 then it could have been imported under the OGL before that date. The crucial dates in this regard are 26-5-1987 and 25-7-1987 when the goods were actually loaded in the shop and not the date of arrival of the ship in the territorial waters of India. It is well settled that a penal and exproprietory legislation must be strictly construed. 20. In the instant case, having regard to the legal position as noticed above it must be held that the import of the goods in question was legal. It was even legal when the goods reached the port. Re : Question No. 2 21. The Apex Court held that payment of demurrage is mandatory in International Airport Authority v. Grand Slam International - 1995 (77) E.L.T. 753 (S.C.) = JT 1995 (2) S.C. 452 in the following terms : 66: From the above decisions of this Court, it becomes clear that an authority created under a statute even if is the custodian of the imported goods because of the provisio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al release of goods and yet the goods had not been released. It is under these circumstances and in view of the specific undertaking given by the customs authorities, this Court held that from the date of detention of the goods till the customs authority, intimated the importer, the importer would not be required to pay the demurrage charges. But in that case even subsequent to the orders of the customs authorities on a suit being filed by one of the partners of the importer firm, an order of injunction was issued and therefore it was held that for that period the importer would be liable for paying the demurrage and container charges. The judgment of this court in Sanjeev Woollen Mills, therefore was in relation to the peculiar facts and circumstances of the case and the Court had clearly observed that the order in question is meant to do justice to the importer looking to the totality of the circumstances and the conduct of customs authorities. Thus, we see no inconsistency between the ratio in Sanjeev Woollen Mills and the judgment of this court in Grand Slam. That apart, the judgment in Grand Slam was a Three Judge Bench judgment. In the case in hand, as has already been stated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n the custody of such person as may be approved by the Commissioner of Customs until they are cleared for home consumption or are warehoused or are transshipped in accordance with the provisions of Chapter VIII 2. The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force - (a) shall keep a record of such goods and send a copy thereof to the proper officer. (b) Shall not permit such goods to be removed from the customs area or otherwise dealt with except under and in accordance with the permission in writing of the proper officer. 25. In these circumstances, Section 155 of the Customs Act to which reference has been made by Shri Jayant Bhushan is of no relevance, inasmuch as, by reason thereof only the officers who have taken action in good faith are required to be protected. The said provision either expressly or by necessary implication does not provide that a party will have to pay the penalty, although he has not violated the provisions of the law. We, therefore, are of the opinion that in the case of this nature Customs Department should be directed to bear t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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