TMI Blog2010 (10) TMI 150X X X X Extracts X X X X X X X X Extracts X X X X ..... Customs to de-stuff the 13 containers remaining out of the 40 and release them without any further delay. Directions are also sought to Respondent No. 2 to pay the shipping line charges to the respective shipping lines. 2. In July 2001, on receiving a tip off about clandestine import of metal scrap, containers imported by the Petitioner purportedly containing aluminum scrap were seized by the Customs Department. The Petitioner was alleged to have imported not just aluminum scrap but scrap of other metals like nickel and tin which were seized and taken control of by the Customs Department. The seized containers were transported to the Inland Container Depot. Tuglakabad, New Delhi and lodged at the warehouse of the CCI. The Petitioner states that the shipping line i.e. owners of the containers, began to pressurize the Petitioner into getting the containers released. On 20th August 2001, the Petitioner asked the Customs Department to inspect the containers at an early date so that they could be released. It was urged that any delay in the release of the containers would result in demurrage and detention charges owing to CCI accumulating. Further, reminders were sent on 26th and 28t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... C.), Shipping Corporation of India v. C.L. Jain Woolen Mills - (2001) 5 SCC 345 and Union of India v. R.C. Fabrics (P) Ltd. - (2002) 1 SCC 718 = 2002 (139) E.L.T. 12 (S.C.). 5. The Customs Department, in its reply, took a preliminary objection that the petition was bad for laches and that the petition should be dismissed in limine since the Petitioner had not stated the true and complete facts. It was stated by the Customs Department that on the basis of specific information received by the Commissioner of Customs, 17 containers of metal scrap imported by the Petitioner were taken up for detailed examination. The information indicated that the Petitioner while importing aluminum scrap was indulging in the smuggling of high value metals such as nickel and tin. The imported goods were also found to have been misdeclared as regards weight and value. Six of the bills of entry filed by the Petitioner for the above said 17 containers, when taken up for scrutiny on 3rd August 2001 confirmed the misdeclaration of weight. In the presence of the Petitioner a detailed examination was conducted between 7th and 9th August 2001. This revealed that against declared quantity of 155.170 MT of alu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the CESTAT was also dismissed by this Court. It is submitted that in the circumstances no liability for demurrage can attach to the Customs Department since the entire import was illegal. 7. It is pointed out by the Customs Department that by a letter dated 21st October 2002 the Petitioner was duly informed that the request for de-stuffing of the cargo could not be acceded to as the CCI had shown their inability to provide space for the safe custody of the goods on the grounds of the cargo being scrap material in loose condition. The Petitioner was requested to get the seized goods released provisionally. However, the Petitioner did not come forward to clear the goods provisionally. Also after the final assessment the Petitioner did not opt to pay the redemption fine and penalty. Instead the Petitioner preferred to file an appeal against the order of the Commissioner to the CESTAT which was ultimately dismissed. 8. An affidavit was filed by CCI on 8th February 2008 stating that the goods in 13 containers were auctioned on 20/21st August 2007 and a sum of Rs. 1,21,13,286/- was realised on auction. The auction proceeds were utilized as under : (i) Auction expen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the decision of this Court in PIL Mumbai (India) Ltd. v. Union of India - 2010 (254) E.L.T. 67 (Del.). 11. Appearing on behalf of CCI, Mr. R.K. Joshi, learned counsel pointed out that the settled position in law as laid down by the Supreme Court in Grand Slam International was that the CCI was entitled to recover the demurrage charges from the importer irrespective of any illegality committed by the Customs Department. He pointed out that judgment of this Court R.C. Fabrics relied upon by Mr. Dhir was overruled by the Supreme Court in Union of India v. R.C. Fabrics (P) Ltd. - (2002) 1 SCC 718 = 2002 (139) E.L.T. 12 (S.C.). He also relied upon the judgment of Om Shankar Biyani v. Board of Trustees, Port of Calcutta - (2002) 3 SCC 168 = 2002 (140) E.L.T. 321 (S.C.). 12. Mr. Mukesh Anand, learned counsel appearing for the Customs Department, pointed out that the entire import was illegal and assessment of the duty and penalty by the Customs Department was upheld by the CESTAT as well as by this Court. The duty and penalty had since been recovered from the Petitioner. Since the import was itself illegal and the Petitioner had failed to avail of the opportunity of getting the goo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mandamus to pay the demurrage charges. When a direction to this effect was issued by this Court in R.C. Fabrics (P) Ltd. it was reversed by the Supreme Court in Union of India v. R.C. Fabrics (P) Ltd. where in para 16 it was held as under : 16. The High Court has directed that the Customs Department would pay the demurrage, container charges and ground rent to the Corporation from 16-1-1991. The said direction is contrary to the decision of this Court in International Airports Authority of India v. Grand Slam International - (1995) 3 SCC 151 = 1995 (77) E.L.T. 753 (S.C.) The Corporation is entitled to recover its charges from the importer. Therefore, the direction in the impugned judgment and order that the Customs Authorities shall pay those charges is set aside. Thus, the appeal filed by the importer (CA No. 7931 of 1995) deserves to be dismissed. In any event, no one has appeared in support of that appeal. 16. The settled law as laid down by the Supreme Court in Grand Slam International is as follows : 41. The purpose of the Customs Act on the one hand and the Major Port Trusts Act and the International Airports Authority Act on the other hand are different. The former ..... X X X X Extracts X X X X X X X X Extracts X X X X
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