TMI Blog2016 (5) TMI 652X X X X Extracts X X X X X X X X Extracts X X X X ..... he Customs Department. Petitioner contended that 20% of the cargo could not be moved by them on account of restraint imposed by the Customs Authorities, therefore, they are entitled for 45 free days. Held that:- when the 3rd respondent, Customs Department had specifically stated that the goods were detained for conducting verification and tests and that the detained goods were released on 13.01.2016 after the receipt of the report from the Regional Fertilizer Control Laboratory on 04.01.2016, the contention of the respondents 1 & 2 that unless the goods were detained by the Customs Department, the petitioner is liable to pay the demurrage charges, cannot be accepted. When the counter filed by the Customs Department clearly says that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 69 of 2016 and W.M.P.No.1717 of 2016 - - - Dated:- 29-4-2016 - M. Duraiswamy, J. For the Petitioner : Mr. AR. L. Sundaresan, Senior Counsel Mrs. AL. Gandhimathi For the Respondents : Mr.S.Haja Mohideen Gisthi (R1 R2) Mrs.Mallika Srinivasan (R3) ORDER The petitioner has filed the above Writ Petition to issue a writ of mandamus to direct the respondents to release the cargo stored in E1 Shed pursuant to the bill of entry dated 03.12.2015 without insisting for any payment towards demurrage charges and to direct the respondents to refund the sum of ₹ 9,39,867.53p erroneously paid by the petitioner towards demurrage charges. 2. According to the petitioner, they were appointed as Agent for clearing the cargo Muriat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich the goods were detained by the Commissioner of Customs for the purpose of special examination involving analytical or technical tests other than the ordinary process of appraisement and certified by the Commissioner of Customs to be attributable to any fault or negligence on the part of the importers. 4. According to the petitioner, 20% of the cargo could not be moved by the petitioner on account of the restraint imposed by the Customs Authorities. Therefore, the petitioner contended that they are entitled for 45 free days, however, the respondents 1 2 Port Trust insisted and collected demurrage charge on 20% of the cargo, viz., 2,610 tons at the rate of ₹ 18.50 per Ton initially from 20.12.2015 to 26.12.2015 and at the rate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Port charges are paid prior to the delivery of the cargo. According to the respondents 1 2, by the order of the Customs dated 07.12.2015, 80% of the cargo was ordered to be released and in respect of 20% of the cargo on Board/site was not released to verify the description with respect to all original bank attested import documents and also to verify Analytical Certificate/Technical Literature by Regional Fertilizer Control Laboratory (RFCL). Out of the total quantity of 13,050 metric tons, the Customs had cleared 10,440 metric tons on 07.12.2015 within the free days. Further, they have stated that in respect of the 20% of the cargo, the Customs have not imposed Detention Order, therefore, it was not detained as per the orders of the Cus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no delay on the part of the respondent in releasing the cargo. The total number of days covered to clear the cargo by the customs is less than 45 days. 8. On a perusal of the stand taken by the 3rd respondent Customs Department, it is clear that only 80% of the cargo was released on 07.12.2015 and the balance 20% was retained by the respondents for verification and conducting test. The report was received from Regional Fertilizer Control Laboratory on 04.01.2016. Pursuant to the report, the Customs released the remaining 20% of the cargo on 13.01.2016. Further, in paragraph 4, the Customs Department had specifically stated that on receipt of the test report, the petitioner approached the respondents for release of the detained goods. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent, the stand taken by the respondents 1 2 cannot be accepted. The respondents 1 2 are liable to release the cargo stored in E1 Shed pursuant to the bill of entry dated 03.12.2015 without insisting for any payment towards demurrage charges. The respondents 1 2 should also refund the amount received by them towards the demurrage charges for the 20% of the cargo. 10. Accordingly, I direct the respondents to release the cargo stored in E1 Shed pursuant to the bill of entry dated 03.12.2015, without insisting for any payment towards demurrage charges and I also direct the respondents 1 2 to refund the amount paid by the petitioner towards demurrage charges for 20% of the cargo, which was not released pursuant to the order dated 07.1 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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