TMI Blog2016 (10) TMI 25X X X X Extracts X X X X X X X X Extracts X X X X ..... on dismissed - decided against petitioner. - D. B. Civil Writ Petition No. 4755/2001 - - - Dated:- 22-9-2016 - K. S. Jhaveri And Banwari Lal Sharma, JJ. Mr. Rahul Sharma for the petitioner Mr. R.P. Garg with Mr. Shubham Jain for the respondents ORDER 1. By way of this petition, the petitioner has prayed for the following relief (s) :- (a) Issue an appropriate writ, order or direction quashing and setting aside annexure 23, 25 27 and directing the respondent no. 2 3 to allow re-export of the goods directed to be re-exported and release the remaining goods directed to be released to the petitioner as per order of Commissioner Appeals, Jaipur dated 13/17.9.1999 annexure 10, without charging any demurrage or any other charges. (b) Issue an appropriate writ, order or direction directing the respondent no. 2 3 to pay interest @ 18% per annum on the value of the goods from date of arrival of goods till date of release. (c) Award cost of litigation and this writ petition in favour of the petitioner. (d) Award any other relief, which is found just and proper in favour of the petitioner. 2. Counsel for the petitioner contended that the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n but that order is ultimately set aside in appeal and it is held by Court of law that the detention of the goods was illegal, then in such circumstances whether the carrier of the goods who had lien over the goods for non-payment of duty, can enforce the terms and conditions of the contract against the customs authorities, making the said authorities liable to pay the demurrage charges. Needless to mention, demurrage charges are levied for the place the goods occupy and for the period it remains not being released, on account of lack of customs clearance. It may be noticed at this stage that the customs authorities exercise its power under the provisions of the Customs Act whereas the claim of the Corporation who acts as a carrier is based upon the terms and conditions of the contract between the importer and the carrier. So far as the powers of the customs authorities are concerned, the same are circumscribed by the provisions of the Customs Act, 1962. Section 8 of the Customs Act empowers the Collector of Customs to approve proper places in any customs port or customs airport of coastal port for unloading and loading of goods and specify the limits of the customs area. Section 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wherein dutiable goods may be deposited, as provided in Section 57 of the Act, Under Section 58, the Deputy Commissioner or Assistant Commissioner may even licence private warehouses wherein dutiable imported goods could be deposited. But all warehoused goods would be subject to the control of the proper officer of the customs department, as provided in Section 62 and the owner of the goods is required to pay the rent and warehouse charges to be fixed by the Commissioner of Customs, as provided in Section 63. No warehoused goods could be taken out of the warehouse except for clearance of home consumption of for removal to another warehouse, as stipulated in Section 67 of the Act. Section 68 provides the procedure which an importer would follow for clearing the warehoused goods for home consumption. The expression warehouse has been defined in Section 2(43) to mean a public warehouse appointed under Section 57 or a private warehouse licensed under Section 58. It is thus apparent from different provisions mentioned above that the customs authorities have full power and control over the imported goods and without the permission of the customs authorities, the goods cannot be cleare ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rticulars but only to deliver total number of containers (if same loaded by the merchant or packages or units) [if container(s) loaded by the carrier] shown on the face of this Bill of Lading. Clause (2) of the Bill of Lading defines 'Carrier's Tariff as follows: Clause (2) - Carriers Tariff: The terms of the carrier's applicable tariff are incorporated herein and copies of the relevant provisions of the applicable tariff are obtainable from the carrier or the agents upon request. In the case of inconsistency between this Bill of Lading and the applicable tariff, this Bill of Lading shall prevail. Clause (14) confers a lien on the goods for all sums payable under the contract. The said clause is quoted below in extenso: Clause (14). Freight etc. Earned: All unpaid charges shall be paid in full and without any offset, counterclaim or deduction. Any error in freight or other charges or in the classification of Goods is subject to correction and if on correction the freight or charges are higher, the Carrier may collect the additional amount from shipper or consignees. The Carrier shall have a lien on the Goods and any documents relati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itself, would not clothe the customs authorities with the power to direct the carrier who continues to retain a lien over the imported goods, so long as his dues are not paid, not to charge any demurrage charges nor the so-called issuance of detention certificate would also prohibit the carrier from raising any demand towards demurrage charges, for the occupation of the imported goods of the space, which the proprietor of the space is entitled to charge from the importer. The importer also will not be entitled to remove his goods from the premises unless customs clearance is given. But that would not mean that demurrage charges could not be levied on importer for the space his goods have occupied, since the contract between the importer and the proprietor of the space is in no way altered because of the orders issued by the customs authorities. The learned Additional Solicitor General, vehemently argued and pressed sub-Section 2(b) of Section 45 in support of his contention that the imported goods have to be dealt with in accordance with the permission in writing of the proper officer of the customs department and in exercise of such power when customs authorities initiate adjudic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e charges. But in that caqse even subsequent to the orders of the customs authorities on a suit being tiled by one of the partners of the importer-firm, an order of injunction was issued and, therefore, it was held that for that period, the importer would be liable for paying the demurrage and container charges. The judgment of this Court in Sanjeev Woolen Mills, therefore, was in relation to the peculiar facts and circumstances of the case and the Court had clearly observed that the order in question is meant to do inconsistency between the ratio in Sanjeev Woolen Mills and the Judgment of this Court in Grand Slam, That apart, the judgment in Grand Slam was a three Judge Gench judgment. In the case in hand; as has already been stated earlier, the earlier judgment of Delhi High Court dated 9-9-1994 in C.W.P. No.1604/91, has become final, which entitles the importer to get the goods released without payment of the detention and demurrage charges. In the contextual facts, notwithstanding the judgment of the High Court, the goods not having been released, the impugned order and direction dated 18-1-1999, cannot be held to be infirm in any manner. In the absence of any provision in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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