TMI Blog2016 (3) TMI 1035X X X X Extracts X X X X X X X X Extracts X X X X ..... urrage on imported cargo. Apart from that the Board having itself found no guideline was in place to cover the case of the petitioner, went on to say its case did not deserve consideration due to any special circumstance. On the top of that record bears the finding by this Court in the petitioner’s earlier writ petition, as would appear from the passage reproduced above, that so far as the Customs was concerned their ‘bureaucratic machinery, in such a situation, will not be able to function, because none of the standard operations quite fits the special situation’. Therefore, the impugned order is not sustainable and set aside. Also, the respondent no.1 shall revisit the claim of the petitioner for waiver of demurrage charges. Such direction is being made because the said respondent itself chose to consider the same under Section 53 of the said Act inasmuch as the claim of the petitioner was not rejected in limine. - Petition disposed of - WP No. 1047 of 2006 - - - Dated:- 2-3-2016 - Arindam Sinha, J. For the Petitioner : Mr. Samit Talukdar, Sr. Advocate Mr. A.K. Dey, Advocate For the Respondent : Mr. Tilak Bose, Sr. Advocate, Mr. Shiv Shankar Banerjee, Mr. Arik Ba ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g that prejudice must be shown to have been caused by non supply of a document before an order or proceeding could be set aside on that ground. The decisions are :- i) Panchmahal Vadodara Gramin Bank vs. D.M. Parmar, reported in (2011)15 SCC 310; and ii) Burdwan Central Cooperative Bank Limited vs. Ashim Chatterjee, reported in (2012)2 SCC 641. Mr. Bose next relied on a judgment of the Supreme Court in the case of G.B. Mahajan Ors. vs. Jalgaon Municipal Council Ors., reported in (1991)3 SCC 91. Argument made regarding exercise of discretion was recorded in paragraph 37 of the said judgment, which is reproduced below:- 37. It was urged that the basic concept of the manner of the development of the real estate and disposal of occupancy rights were vitiated by unreasonableness. It is a truism, doctrinally, that powers must be exercised reasonably. But as Prof. Wade points out, The doctrine that powers must be exercised reasonably has to be reconciled with the no less important doctrine that the court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order itself. It appears the petitioner who is a company incorporated under the relevant laws of Singapore and having its office there, had sent goods being copper wires that an importer wanted to import. The goods arrived in Kolkata Port but the importer did not turn up to file Bill of Entry. In such circumstances, the petitioner had sought for reshipment of the goods, to take it back. The goods stood landed in the custody of the Kolkata Port Trust. The earlier writ petition was filed by the petitioner which resulted in a direction for reshipment. The respondent in that writ petition was the Customs who was resisting reshipment of the goods where the importer had not turned up. In that writ petition the Port Trust was not a party yet was aggrieved since there was direction for reshipment without payment of demurrage charges. Pursuant to the Port Trust resisting the removal of goods from their custody without payment of demurrage charges, it applied for being added as a party to that writ petition which was then reheard, orders made and appeals preferred therefrom. It was submitted, by orders in appeal, apportionment of liability to pay demurrage charges had been made between the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hey could not do so. h) Since accrual of demurrage was not because of any fault/negligence on the part of DMPL, demurrage charges may be waived fully. 7. On 16.12.2005 i.e. the day of hearing, on behalf of DMPL, Shri S Talukdar, Advocate, A. K. Dey, Advocate, Om Prakash Chowdhury, Advocate and B. Dey, Advocate were present. The above Ld. Advocates, on behalf of DMPL, narrated the history of the case and reiterated the issues raised by DMPL in their letter dated 29.09.2005. In addition to this, they submitted that their case fell under special category and deserved special consideration for granting waiver of demurrage which had been accruing due to no fault of their client. Accordingly, they prayed for full waiver of demurrage payable by their client and in case, the same could not be acceded to by the Trustees, at least demurrage in excess of four months demurrage accrued on the consignments, might be waived as a special case, in terms of Section 53 of the MPT Act. 8. During submission, it was also pointed out by the Ld. Advocates of the petitioner that (a) KoPt was not responsible for accrual of demurrage. (b) The Hon ble Supreme Court in various j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the aforesaid two paragraphs of the said guideline are not applicable. b) On the other hand, paragraph-2(ii) of the aforesaid guidelines states that the Trustees may consider cases for waiver of demurrage charges if they have reasons to believe that the detention of goods is not due to the fault of the importer/consignee. On perusing the judgement dated 3.5.2005 the Hon ble Justice K.J. Sengupta it is seen that DMPL was given liberty by the Hon ble Court on 06.01.1997 for reshipment of the goods by paying 50% of the demurrage accrued at that time without prejudice but, the same was not availed of by DMPL. To mitigate the loss, DMPL should have availed of the same. In fact, demurrage accrued upto 06.01.1997 was ₹ 1,15,14,518/- and 50% of the same was ₹ 57,57,259 only. Considering the conduct of both Customs and DMPL, Hon ble Court has already passed orders for levy of a portion of demurrage accrued on the consignments on both the parties, payable to KoPT. When both the parties were at fault, paragraph 2(ii) of the said guideline is also not applicable in the instant case. c) Paragraph 10 of the said guideline states that in case in the opinion of the Port Tru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r. The first judgment dated 21st February, 1994 by A.N. Ray J., by which the earlier writ petition of the petitioner was dealt with though not disposed of, carried the following passage as is reproduced below: Mr. Ghosh submitted that if I were to accept the contentions of the petitioner, I would to speak have to throw the Customs Act, into the Ganges. I do not agree. It might be that, for a case like the present, where, after filing of the manifest, a sender of the goods from outside India, changes his mind about sending the goods at all into this country, there exists no specific section in the Customs Act, on the basis of which the officials can give effect to such a change of mind on the part of the foreign exporter, even when such change of mind is not illegal or extraneously motivated. The bureaucratic machinery, in such a situation, will not be able to function, because none of the standard operations quite fits the special situation. It is exactly in these cases that the writ court steps in for relief, and uses its all pervasive power to grant a just solution to the parties who deserves the same, not withstanding the non-existence of any standard or prototype proced ..... X X X X Extracts X X X X X X X X Extracts X X X X
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