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2016 (3) TMI 611 - MADRAS HIGH COURT

2016 (3) TMI 611 - MADRAS HIGH COURT - 2016 (336) E.L.T. 39 (Mad.) - Rejection of claim for recovery of demurrage charges - Writ petition - Validity of order - Seeking invokation of Article 226 of the Constitution of India - Held that:- when there is a dispute with regard to demurrage charges claimed by the petitioner as against the 2nd respondent, the same cannot be decided by this Court in the Writ Petition, when the 2nd respondent had paid the duty payable to the 1st respondent and the Dock o .....

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law dispute as contra-distinguished from a dispute involving public law character. The petitioner cannot force the 1st respondent to conduct an auction so as to recover the demurrage charges from the 2nd respondent, even though the 1st respondent does not have any control over the goods. - Decided against the petitioner - W.P.Nos.28224 & 28225 of 2015, M.P.Nos.1 to 1 of 2015 - Dated:- 8-3-2016 - M. Duraiswamy, J. For the Petitioner : Mr. P. Giridharan For the Respondents : Mr. Vikram Ramakrishn .....

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e learned counsels, both the Writ Petitions are disposed of by this common order. 3. It is the case of the petitioner that they are off dock Container Freight Station, which provides facilities for storing Containers, including movement of Containers from and to Port, delivery of Containers to customers, facilitating movement of customs cleared Containers from and to Port, receiving of export and import cargo, stuffing and de-stuffing of containers. The petitioner, being a Container Freight Stat .....

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hennai in the month of October 2014 and July 2013 and were brought into the Container Freight Station of the petitioner on 09.10,2014, 10.10.2014 & 11.10.2014 and 19.06.2013 & 20.06.2013. Though the containers arrived in October 2014 and July 2013, the 2nd respondent did not take steps to clear the Cargo within 30 days from the date of importation into India. Therefore, the petitioner issued a notice under Section 48 of the Customs Act to the 2nd respondent dated 06.11.2014 and 19.07.201 .....

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of Customs Act. Even after the 2nd notice, the 2nd respondent did not take steps to clear the cargo stuffed in the containers. Therefore, the petitioner by letters dated 31.03.2015 and 18.11.2013 sought the permission of the 1st respondent to auction the goods. 4. In the Writ Petition in W.P.No.28225 of 2015, the 1st respondent, by order dated 16.06.2014, permitted the petitioner to auction the goods. Thereafter, the goods were scheduled to be auctioned by way of E-auction on 10.07.2014. In the .....

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respondent, stating that if the goods are not cleared within 5 days from the date of receipt of the said letters, the petitioner would be forced to auction the said goods. The 1st respondent issued the impugned orders dated 27.07.2015 and 15.07.2015 stating that the 2nd respondent had filed Bill of Entry dated 20.10.2014 and 07.07.2014 and paid the duty and once the customs duty was realized, the goods cannot be included in the Lot for fresh auction. 7. According to the petitioner, the demurrage .....

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y help the Revenue in the instant case. Section 63 is a specific provision concerning warehousing charges. It may be recalled that the auction took place for the purposes of recovering the warehousing duties and not for the purpose of recovering the customs duty in terms of Section 72 of the Act. It is also not possible to read Section 150(2)(b) as permitting appropriation of the sale proceeds towards the outstanding customs duty after meeting the expenses of the sale. The words and other charge .....

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Act. Viewed from this angle, the right of the petitioner here to recover the warehousing charges from the sale proceeds appears superior to the right of the Revenue to recover customs duty. 9. The learned counsel for the petitioner also relied upon Handling of Cargo in Customs Areas Regulations, 2009 wherein in Regulation 6(1)(f) it has been stated as follows: (f) no permit goods to be removed from the customs area, or otherwise dealt with, except under and in accordance with the permission in w .....

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and the Electrical Steel Sheets in Coils were not warehoused so as to make the dictum laid down in the division Bench of the Delhi High Court applicable to the present case. 11. On a perusal of the impugned orders, it is clear that the 1st respondent has considered all the aspects and passed speaking orders with reasons. On a perusal of the materials available on record, it is also clear that now the dispute is between the petitioner and the 2nd respondent for recovery of demurrage. For this, th .....

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