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2016 (3) TMI 1035 - CALCUTTA HIGH COURT

2016 (3) TMI 1035 - CALCUTTA HIGH COURT - TMI - Grant of waiver of demurrage charges - Exportation of copper wires - Petitioner sent goods but the importer did not turn up to file Bill of Entry hence, the petitioner sought for reshipment of goods - Board chose to not to exercise power under Section 53 of the said Act and rejected the claim for demurrage - Held that:- in rejecting the claim of the petitioner, upon having entered into an exercise to consider the same, the Board relied on guideline .....

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, as does not appear from the impugned order, to make submissions with reference or regard to the guidelines for waiver of demurrage 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 petitionerís earlier writ petition, as would appear from the passage reproduced above, .....

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nasmuch 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 Banerjee and Mr. B. Chakraborty, Advocates, Mr. R. Bharadwaj, Advocate ORDER The Court : The challenge in this writ petition is directed against an order signed by the Trustees of the K .....

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or waiver of demurrage charges on exportation of goods. Mr. Talukdar relied upon Section 53 of the Major Port Trusts Act, 1963 to submit, the Board in effect did not apply its mind to the case for waiver made by the petitioner. Mr. Bharadwaj, learned Advocate appearing on behalf of the Customs submitted the said authority had also applied for waiver of demurrage charges said to be payable by it. On a reading of paragraph 9 in the impugned order as well as the statements made in the affidavit in .....

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ately, when this writ petition was moved, there was order dated 5th September, 2006 made, inter alia, restraining his client from disposing of the goods of the petitioner till the disposal of the writ petition. Mr. Bose urged that there be adjudication and finding of Court regarding his contention that exercise of power by the Port Trust under Section 61 of the said Act was not subject to or could not be pended by reason of an application for waiver made under Section 53 thereof. He next submitt .....

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m 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 .....

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ust therefore resist the temptation to draw the bounds too tightly, merely according to its own opinion. It must strive to apply an objective standard which leaves to the deciding authority the full range of choices which the legislature is presumed to have intended. Decisions which are extravagant or capricious cannot be legitimate. But if the decision is within the confines of reasonableness, it is no part of the court s function to look further into its merits. With the question whether a par .....

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Trustees of the Port of Bombay vs. Indian Goods Supplying Co. reported in AIR 1977 SC 1622, to portions of paragraphs 10 and 14 thereunder, which are reproduced below: 10) ……………………………………………………… As the scale of rates are framed by virtue of the statutory powers conferred on the Board under S.43 and as the rates have been approved by the Central Govt. u .....

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d are under the authority of law the validity of which cannot be questioned. The claim cannot be resisted as there is no evidence that the delay was due to any act of the Port Trust or persons for whom the Port Trust is responsible. The facts leading upto the petitioner and the Customs applying for waiver of demurrage charges are matters of record in an earlier and this writ petitions and appeals as well as briefly outlined in the impugned order itself. It appears the petitioner who is a company .....

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he 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 app .....

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cation of the point argued now, which point does not appear to have been raised then. Since the challenge in the writ petition has been heard and the interim order stood accepted, the point need not detain this Court any further. For the purpose of adjudication of the challenge in the writ petition, the impugned order must be seen in context of the above facts. Paragraphs 6, 7 and 8 in the impugned order records the submissions made by the petitioner, which are reproduced below: 6. In support of .....

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the goods before demurrage could be imposed on him. c) Person who was not at fault and/or was always ready and willing to take delivery of the materials from the port area but was prevented by Govt. Dept. from doing so, could not be saddled with demurrage charges. d) Before arrival of the goods at Kolkata Port, attempts were made by them to have the goods re-shipped as soon as the Indian purchaser had expressed its intention not to take delivery of the goods. e) Had DMPL been allowed to re-ship .....

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uld 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 su .....

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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 judgments held that the person liable to pay demurrage charges, as per rates framed under the statute, could not avoid such liability even if, a third party including the Municipal Authority and other statutory authorities was at fault for accrual of such demurrage and that Port Trust was entitled to charge demurrage for the imported g .....

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ines for waiver of demurrage charges on import cargo. The reasoning in the impugned order would appear from paragraph 9 of the same as is reproduced below: 9. The application made by the petitioner dated 29.9.05, application made by the Custom Authority dated 28.9.05, documents and records placed as well as the oral submission made by the advocates for the petitioner have been considered by the Board. It reveals that :- a) The goods in question were imported to India but at present, the exporter .....

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the accrued demurrage is for the import leg only. As per the said guideline, port may waive demurrage only when the port is not able to deliver the goods in time. Neither the exporter nor Custom authority has ever indicated any lacunae on the part of KoPT for unusual long detention of the cargo in the Port. On the other hand, para 2(a) or para 2(g) of the aforesaid guideline might have been relevant in the instant case but, as the goods were neither detained by Custom Authority for special exami .....

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6.01.1997 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, .....

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the instant case, Trustees are of the opinion that the applications of the Custom Authority and DMPL do not deserve consideration due to any special circumstance. This Court on perusal of the contentions of the petitioner, the Customs apparently not represented in the hearing granted, finds the Board chose to not to exercise power under Section 53 of the said Act and rejected the claim for demurrage on the reasons given in the impugned order. Section 53 of the said Act is reproduced below: 53. E .....

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remitted in exercise of discretion provided thereunder. The Board, as it appears from the reasons recorded in the impugned order, had considered the claim of the petitioner with reference to the guidelines for waiver of demurrage on import cargo, there being no guideline for export cargo. The contention of the petitioner however did not have any reference to itself as importer or to the guidelines for waiver of demurrage charges on imported cargo. The reasoning given in the impugned order proce .....

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rd. That the petitioner could not be said to be an importer is also apparent from the impugned order. 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 l .....

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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 procedure in the department, on the basis of which such relief could be granted on a mechanized basis. The writ court is free to mould the relief so as to do justice in accordance with our constitution. This Court f .....

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