TMI Blog2013 (5) TMI 41X X X X Extracts X X X X X X X X Extracts X X X X ..... pted by the respondent - Firstly requesting the Shipper and CCI to release the goods without any detention charges/demurrage in view of the detention certificate issued by the Custom Authorities - Thereafter writing letters to them expressing inability to get the goods released on paying detention charges/demurrage which were more than the value of the goods - Finally getting the goods released on payment without prejudice - This conduct of the respondent resulted in further delay thereby incurring more liability to pay detention charges/demurrage which could have been minimized by promptly getting the goods released. Thus, we find that neither on facts nor on law, the impugned judgment can be sustained - We allow the appeal and set aside the ex parte judgment and decree dated 22-3-2002 Suit filed by the respondent is dismissed - Parties shall bear their own cost all throughout - Appellant is entitled to restitution. - RFA (OS) Nos. 6-7 of 2006 - - - Dated:- 28-3-2012 - Pradeep Nandrajog and Pratibha Rani, JJ. Shri A.S. Chandhiok, ASG instructed by Ms. Sonia Sharma, Standing Counsel and Gurpreet Singh, Advocate, for the Appellant. Shri T.P.S. Kang, Advocate, for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Test Bonds against each bill of entry alongwith an Undertaking to pay the Custom duty, if found payable. Thereafter respondent filed all the bills of entries and Test Bonds. Despite the Test Bonds having been filed by the respondent, the goods were not released and detained for months. 8. Ultimately on testing, as the consignment/goods imported by respondent were found to be as per the bills of entries, no duty was payable under the Customs Act. The detention certificate was issued to the respondent by Custom Authorities but request made to Container Corporation of India (hereinafter referred to as CCI) and the Shipping Company to remit the demurrage/detention charges was declined on the ground that they were not concerned with the acts of omission and commission of the appellants. 9. The respondent was constrained to pay ₹ 33,16,218/- to CCI and Shipping Company. Apart from that, due to fluctuation in dollar rates, respondent further suffered loss of ₹ 4,58,608/- and the above amount has been claimed alongwith interest @ 18% p.a. on the ground that the appellant wrongfully withheld the goods imported thereby making the respondent liable to pay heavy amount toward ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orted have been referred as newsprint/printing paper, there was no method for the appellant to ascertain the same except by getting it tested. The appellant only performed its statutory duty in detaining 20% of the goods imported, getting them tested and on being satisfied that the goods imported were printing paper, releasing the same without imposing any custom duty. Not only that even detention certificate was issued specifying that importer was not at fault. Even as per description on the labels of goods imported were Standard Newsprint, the action was justified and bona fide. It has been contended that if demurrage/detention charges have been paid to the CCI or Shipping Company, the same cannot be recovered by the respondent from the appellant. 14. On behalf of respondent, it has been submitted that the act of the appellant in detaining 20% of the stock was mala fide on the ground that goods imported were printing paper which were clearly mentioned on the bill of entries and import was permissible under Open General Licence which did not attract any custom duty. Not only that learned counsel for the respondent has referred to various communications made to custom to release ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and particularly the conduct of the Customs authority in not releasing the goods even after the order of unconditional release dated 11-8-1995 passed by their own Chief Commissioner. The conduct of the Customs Officers concerned is also under investigation. We do not think that this is a case where any intervention at our hands is required. The apprehension of the appellants that this will constitute a precedent is not justified because it is clearly an order which is meant to do justice to the respondent looking to the totality of circumstances and the conduct of the appellants. Obviously, for any delay on the part of the respondent in taking delivery of the goods after 5-4-1997, the respondent will have to bear the consequences. For the period prior to 5-4-1997, however, the order of the High Court does not require any intervention from us. The appellants shall file a progress report relating to the departmental inquiry by 30-11-1998. 18. Reverting to the facts of this case, first we would like to advert to the circumstances under which the appellant was constrained to detain 20% of the goods for conducting test. Let us start with Ex. P2 which is a letter by the respondent to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw sample for us to test at our end. Kaipola Mill of M/S. UPM, Kyammone does not manufacture any standard news paper in 36 GSM. In view of the above we once again request you to please order for immediate test to avoid detention/demurrage charges. 20. The act of Custom Authorities to detain 20% of the imported goods for testing to find out whether the good imported were newsprint, is in good faith as labeling on the goods was Standard Newsprint that created confusion requiring CCI to inform the respondent that Custom clearance was required for effecting delivery. 21. What is good faith has been dealt with in numerous judgments. In the decision reported as AIR 2001 SC 4004 - Union of India v. Ashutosh Kumar Srivastava, it was observed as under :- There is always a presumption in favour of the Administration that is exercise of power shall be in good faith and for public benefit. Therefore, the burden is on the individual to produce sufficient material to suggest of the mala fides of the authority concerned and it is not easy to discharge the same . There is a presumption of bona fides in favour of the Authority. The burden of proving mala fides is on the individual alleg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other than the actual user only under a licence and the respondent had none to import the newsprint. The communication Ex. P2 made by the respondent to the indenting agent and other communications to CCI and Shipper, make it clear that the goods were not released without clearance from the Custom Authorities because the goods were labeled having text marking as Standard Newsprint. 24. The respondent has claimed detention charges/demurrage on the basis of detention certificate issued by the Custom Authorities specifying therein that detention was for no fault of the importer. We are of the considered view that mere issuance of detention certificate to the importer itself does not confer any right on the importer to claim the same from the Custom Authorities. It was so held by the Apex Court in the decision reported as 2001 (8) SCALE 98 = 2002 (139) E.L.T. 12 (S.C.) - Union of India Ors. v. M/s. R.C. Fabrics (P) Ltd. Anr., in para 16 as under :- 16. The High Court has directed that the Custom Department would pay the demurrage, container charge and ground rent to the Corporation from 16th January, 1991. The said direction is contrary to the decision of this Court in Interna ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Sanjeev Woolen Mills. In Sanjeev Woolen Mills the imported goods were synthetic waste (soft quality), though the Customs Authorities detained the same, being of the opinion that they were prime fibre of higher value and not soft waste. On account of non-release, the imported goods incurred heavy demurrage charges but the Customs Authorities themselves gave an undertaking before the High Court that in the event the goods are found to be synthetic waste, then the Revenue itself would bear the entire demurrage and container charges. Further the Chief Commissioner of Customs, later had ordered unconditional release of the 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 Authorities 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 ..... 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