TMI Blog2015 (10) TMI 2619X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner has approached this Court in this writ petition seeking a writ of certiorari to quash Ext.P15 order dated 22-2-2005 issued by the Traffic Manager of the Cochin Port Trust and Ext.P18 order dated 14-3-2005 of the Deputy Commissioner of Customs (UB), Kochi and seeking a writ of mandamus commanding the Cochin Port Trust, the 1st respondent herein, to assess the demurrage charges in graduated scale as applicable to goods detained by the Commissioner of Customs, Kochi, the 2nd respondent herein, for the period upto 5-1-2005, the date of filing of Ext.P9 Writ Petition and to waive the demurrage for the remaining period as a special case with consequential orders for refund together with appropriate interest. The petitioner has also sought for a writ of mandamus commanding the 2nd and 3rd respondents to assess customs duty as per the provisions of the Baggage Rules, as applicable to Non-resident Indians (NRIs) who avail Transfer of Residence benefit, with consequential orders for refund together with appropriate interest. 2. Going by the averments in the writ petition, the petitioner who was employed in Gulf countries decided to bring his used household items as unaccompanie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etention certificate for the entire period of delay for claiming concession on demurrage charges and to direct the 2nd respondent herein to bear the demurrage charges for the delay. The said writ petition ended in dismissal vide Ext.P10 judgment dated 14-1-2005, without prejudice to the right of the petitioner to prefer an appeal against Ext.P8 order under Section 128 of the Customs Act. The said judgment was under challenge in W.A. No. 151 of 2005. 4. Ext.P11 Writ Appeal was disposed of vide Ext.P12 judgment of the Division Bench of this Court dated 7-2-2005. Before the Division Bench, it was submitted on behalf of the petitioner herein that, he is prepared to pay the requisite customs duty and also execute a bond for the amount equivalent to the value of the goods to indemnify the Department, in the event of any claim being made by M/s. Abdul Aziz and Saji Hameed, whose names were shown in Ext.P1 B/L. Further, the petitioner is prepared to give up his claim for demurrage charges from the 2nd respondent herein, for the period during which the goods have been lying in the Port. A memo to that effect was also filed before this Court. After considering the rival submissions, the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only in cases in which the customs has detained the cargo and a certificate to that effect has been issued by the Customs and produced by the consignee with the Port Trust. But, in the case of the petitioner, no detention certificate has been issued by the Customs for considering waiver of demurrage charges. The guidelines issued by the Ministry for waiver/remission of demurrage charges was also enclosed along with Ext.P15. In Ext.P15, the 1st respondent quantified the demurrage charges payable as on 21-2-2005 at ₹ 94,301/- and the petitioner was requested to clear the cargo on payment of Port charges. 7. Pursuant of Ext.P12 judgment, the 2nd respondent allowed amendment of IGM and accordingly, the petitioner filed Ext.P16 International Passenger Baggage Declaration No. 558, dated 16-2-2005. The request made by the petitioner in Ext.P13 representation to issue detention certificate was turned down by the 2nd respondent on the ground that, the question of issuance of detention certificate does not arise since the goods were not detained by the Customs. The 2nd respondent has also pointed out that, in Ext.P12 judgment, this Court has not directed the said respondent to issue ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 128 of the Customs Act and as such the writ petition is not maintainable. 10. Heard the learned counsel for the petitioner, the learned Standing Counsel for the 1st respondent and also the learned Senior Standing Counsel for the Central Board of Excise and Customs for the 2nd and 3rd respondents. 11. The pleadings and materials on record would show that, the petitioner is neither the shipper nor the consignee in Ext.P1 B/L. Subsequently, Ext.P1 B/L was amended vide Ext.P2 B/L showing the petitioner as the shipper and consignee. Thereafter, a request was made before the 2nd respondent for amending the cargo particulars in the IGM, which was turned down in Ext.P5 communication issued by the 2nd respondent on the ground that, the serial numbers of both Bs/L are different. Ext.P5 was followed by Ext.P8 communication in which the request for amending the consignee s name and address against L. No. 72 of IGM was turned down on the ground that, there is no indication available in Ext.P1 B/L to prove that the shipped goods are the personal effects of the petitioner. Further the identity of M/s. Abdul Aziz and Saji Hameed and also the authenticity of the letter obtained from Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him, under the relevant provisions of the Customs Act, read with the Foreign Trade (Development and Regulation) Act, which resulted in Ext.P18 order passed by the 3rd respondent, in which the petitioner was given an option to pay redemption fine in lieu of confiscation of the goods, under Section 125 of the Customs Act and he was also imposed with a penalty of Rs. 10,000/-, under Section 112 of the said Act. In addition to this, at the time of clearing the baggage, the 2nd respondent demanded an amount of ₹ 1,16,768/- as the demurrage charges, vide Ext.P20. 14. In Board of Trustees of the Port of Bombay v. Indian Goods Supplying Co. [1977 (2) SCC 649] a Three-Judge Bench of the Apex Court held that, Chapter VII of the Port Trust Act enumerates the powers and functions of the Board. It is the duty of the Board to recover the rates to have a lien on the goods and seize and detain the goods until such rates are fully paid. The Board is empowered to sell the goods if rates are not paid or lien for freight is not discharged. It can also dispose of goods not removed from the premises of the Board within the time limited. Section 65 of the said Act also provides the mode of app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e goods was delayed due to the mistakes in Ext.P1 B/L. Thereafter, based on the submission made by the petitioner that, he is prepared to pay the requisite customs duty and to execute a bond for the amount equal to the value of goods to indemnify the Department, in the event of any claim being made by the shipper and consignee in Ext.P1 B/L, the Division Bench of this Court by Ext.P12 judgment disposed of W.A. No. 151 of 2005 directing the 2nd respondent to amend the IGM in terms of Ext.P2 B/L and release goods to the petitioner on payment of customs duty, demurrage charges, etc., on the petitioner furnishing bank guarantee for an amount equal to the value of the goods. In Ext.P12 judgment, this Court has also recorded the submission made on behalf of the petitioner that, he is prepared to give up his claim for demurrage charges from the 2nd respondent, for the period during which the goods have been lying in port, and a memo to that effect was also filed before this Court. In that view of the matter, the decision cited in the argument note submitted by the learned counsel for the petitioner will not come to his rescue. 16. The request made by the petitioner to issue detention c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of 60 days prescribed under Section 128(1) of the said Act, the petitioner challenged the said order before this Court under Article 226 of the Constitution of India. 18. Relying on the judgment of the Apex Court in Godrej Sara Lee Ltd. v. Assistant Commissioner (AA) [2009 (236) E.L.T. 425 (S.C.)], the petitioner would contend that, existence of alternative remedy against Ext.P18 order is not a bar for entertaining a writ petition under Article 226 of the Constitution of India. A reading of Para 17 of the said judgment would show that, the question raised in the writ petition was as to whether a Notification (SRO No. 82/2006), dated 21-1-2006 notifying the list of goods specified therein to be taxable at the rate of 12.5% could have retrospective effect or retro-active operation. In that context, the Apex Court held that, being a jurisdictional fact, it should have been determined by the High Court in exercise of its writ jurisdiction under Article 226 of the Constitution of India. 19. However, in the case on hand, no such jurisdictional issues are involved. The petitioner, in order to succeed in the challenge made against Ext.P18 order, will have to establish that he is el ..... X X X X Extracts X X X X X X X X Extracts X X X X
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