TMI Blog2020 (2) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, cannot lead to transference of liability to pay demurrage, to the Customs authorities. Refund of excess Customs duty - HELD THAT:- We are not inclined to exercise our extraordinary jurisdiction under Article 226 of the Constitution of India, when an alternative efficacious remedy for obtaining the refund claim is clearly prescribed in the statute. The petitioner cannot circumvent the statutory provisions by invoking the writ jurisdiction. Moreover, sub-section (3) of Section 27 of the Customs Act, 1962, clearly suggests that, the claim for refund must be made in accordance with sub-section (2) of Section 27 of the Customs Act, 1962. Hence, we are not inclined to exercise our writ jurisdiction regarding the petitioner s claim for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9. 8. The examination order, dated 18th April, 2019, stated that the plant micronutrients/growth regulators like compounds of Zinc/Boron/Manganese/ Molybdenum/Iron/copper etc. are classifiable under CTH 39 and chargeable to higher rate of duty , with reference relying on the C.B.E. C. Circular No. 392/25/1998, dated 19th May, 1998. Post which, the petitioner s goods, were not released. The petitioner made several representations. 9. On 8th May, 2019, petitioner addressed a letter to the Deputy Commissioner, Special Intelligence and Investigation Branch (SIIB), requesting the release of goods and explaining the intended use of the product. The petitioner submitted reminders again on the 20th May, 2019 and 21st May, 2019. 10. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be reduced from the demurrage charges payable by the petitioner. This was appealed by the petitioner, before the Executive Director, CCI on 18th October, 2019 and before the Director (International Marketing and Operations) on 18th November, 2019, respectively, but submits that the petitioner has received no reply to the same, till the filing of this writ petition. 17. Aggrieved by the denial of waiver charges, the petitioner has approached this Court by means of a writ under Article 226 of the Constitution of India, praying the Customs authorities to pay or remit the godown and the demurrage charges of ₹ 8,36,207/-, as well as the refund of the excess collection of Customs duty of ₹ 2,03,987/- paid by the petitioner. The p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aforecited decisions, the following clear principles emerge : (i) The custodian has a lien over the imported goods, consigned to its custody. This lien may be statutory, as provided under the IAA Act, all the Major Port Trusts Acts, or contractual. It may also be relatable to Sections 170 and 171 of the Indian Contract Act, 1872. (ii) This lien entitles the custodian to retain hold of the goods, consigned to its custody, till all its dues, including ground rent and demurrage, are paid. (iii) The Customs authorities have no power, or the jurisdiction, to issue any instruction, to the custodian, requiring the custodian to waive, in whole or in part, the demurrage chargeable by it. Of course, this would be subject to any st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ge were deliberately made prohibitive, so as to discourage importers from consigning goods to the custody of the Port Trust or other custodian, and to avoid congestion at the port. xxx xxx xxx 136. We deem it appropriate to add, here, that the Customs authorities, while exercising their power of search, seizure and investigation, are essentially discharging sovereign functions. A reasonable amount of time is expected to be expended in this process, and the mere fact that, by reason of the investigative exercise conducted by the Customs authorities, it has not been possible for the importer to clear its goods, cannot, ipso facto, lead to transference of liability to pay demurrage, to the Customs authorities. 23 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 85) 1 SCC 260 = 1985 (19) E.L.T. 22 (S.C.)]. the three-judge Bench of the Supreme Court, held that : 3. Article 226 is not meant to short circuit or circumvent statutory procedures, it is only where statutory remedies are entirely ill suited to meet the demands of extraordinary situations, as for instance where the very vires of the statute is in question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of public justice require it that recourse may be had to Article 226 of the Constitution. But then the Court must have good and sufficient reason to bypass the alternative remedy provided by statute. Surely matters involving the revenue where statutory remedies are ava ..... X X X X Extracts X X X X X X X X Extracts X X X X
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