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2016 (5) TMI 652 - MADRAS HIGH COURT

2016 (5) TMI 652 - MADRAS HIGH COURT - 2016 (336) E.L.T. 217 (Mad.) - Seeking direction for release of cargo without insisting for any payment towards demurrage charges and refund erroneously paid by the petitioner towards demurrage charges - Import of 13,050 metric tons of Muriate of Potash from Israel - Cargo off-loaded from Vessel and stored in E1 Shed on transit basis in the Port area. Pursuant to the order of the Customs Department, the petitioner cleared 80% of the cargo and remaining 20% .....

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sed 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 goods were detained, the respondents 1 & 2 cannot take a different stand stating that the goods were not detained by the Customs Departmen .....

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or the release of the goods, however, the respondents 1 & 2 levied demurrage charges stating that there was no order of detention. Since it is clear that the goods were detained by the Customs Department, 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 without insisting for any payment towards demurrage charges. The respondents 1 & 2 should also refund the amount received by them towards the demurrage charges fo .....

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el 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 charge .....

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ed 07.12.2015, had released 80% of the cargo and retained 20% on site for verifying the description with all the original bank attested documents and to verify the analytical certificate/technical literature. The samples were ordered to be drawn by the Fertilizer Control Laboratory for testing the standards as per the Fertilizer Control Order. It was further directed that the remaining 20% of the cargo would be released after the receipt of the test report. The cargo was off-loaded from the Vess .....

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a) provides that the first 45 days will be free days for the period of detention during which 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 .....

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entral Fertilizers Quality Control and Training Institute, Faridabad, the imported cargo satisfies the standards as per Fertilizer Control Order, therefore, the restraint imposed on the petitioner in respect of 20% of the cargo was lifted by the Customs Department pursuant to the report dated 04.01.2016. The petitioner approached the 2nd respondent on 13.01.2016 requesting the 2nd respondent to release the goods without levying any demurrage charges in the light of the relevant Clause contained .....

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heir counter, have stated that the demurrage charges are being levied in order to speed up the clearance of cargo from the transit area of the Port and to discourage the users to utilize the area as their warehouse. Further, they have stated that it is their duty to ensure that the Customs give clearance, the customs duty is paid and the 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 .....

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have not imposed Detention Order, therefore, it was not detained as per the orders of the Customs. Further, the respondents 1 & 2 contended that since there was no Detention Order passed by the Customs and the Customs Detention Certificate was issued in respect of the 20% of the cargo, the petitioner is liable to pay demurrage charges. 7. In the counter filed by the 3rd respondent/Customs Department, in paragraphs - 2 to 5, the 3rd respondent has stated as follows: 2.Adverting to para 6 the .....

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85 and the balance cargo to be released after verification of test report. Accordingly, 80% of the cargo was released. 3. The Test report was received on 4-1-2016 wherein the under the column remarks it was shown as standard . Consequently, the balance 20% retained by the respondent was released on 13-1-2016 after receipt of RFCL test report No.526/2015 dated -4-1-2016. 4. On receipt of the test report the petitioner approached the respondent for release of the detained goods. Accordingly, on 13 .....

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ilizer 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. Further, the 3rd respondent had stated that the total number of days to clear the cargo is less than 45 days. 9. When the 3rd respondent, Customs Department had specifically stated th .....

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