TMI Blog1987 (1) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... rt Trust. Accordingly, at the conclusion of the hearing of these appeals we passed an order on 16-12-1986 before reserving the appeals for judgment directing the 1st respondent to furnish within eight weeks a bank guarantee of a nationalised Bank in favour of the appellant for due payment of ₹ 3,04,004.25 paise to the appellant on demand, without any demur, being the balance of wharfage and demurrage charges in the event of the 1st respondent not succeeding ultimately in Writ Petition No. 122 of 1986 and on failure to furnish such bank guarantee within eight weeks to pay in cash ₹ 3,04,004.25 paise to the appellant forthwith. This shall be the final order in these appeals. - 4483 and 4484 of 1986 - - - Dated:- 9-1-1987 - E.S. Venkataramiah and K.N. Singh, JJ. [Judgment per : Venkataramiah, J.]. - These appeals by special leave are filed against the order dated 26-6-1986 passed in Appeal No. 512 of 1986 in Writ Petition No. 1007 of 1986 and the Order dated 26-6-1986 in Appeal No. 535 of 1986 in Writ Petition No. 1424 of 1986 of the High Court of Bombay. Since these two are connected matters, they are disposed of by this common judgment. 2. The facts of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 of 1986 for the issue of a direction to the customs authorities to permit it to clear the consignments. On April 2, 1986 the learned single Judge of the High Court of Bombay who heard the said petition passed an order allowing the 1st respondent to clear the consignments on furnishing an Import Trade Control bond for the value of the consignments calculated at the rate of US $ 735 per metric ton and furnishing a bank guarantee of a nationalised bank in favour of the Collector of Customs, Bombay to the satisfaction of the Prothonotary Senior Master, High Court, Bombay, for a sum equivalent to the difference in the value between US $ 715 and US $ 735 per metric ton without prejudice to the rights and contentions of the 1st respondent. The said order provided that the customs authorities could continue their investigation and adjudicate upon the duty payable by the 1st respondent. On the basis of the above order the 1st respondent was allowed to withdraw the writ petition with liberty to file a fresh petition, if required. Since there was a delay in the clearance of the consignments in question and the 1st respondent had become liable to pay demurrage to the Port Trust, the 1st re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Order, dated 2nd April, 1986 passed in Writ Petition No. 519 of 1986. Thereupon, on June 12, 1986 the 1st respondent and its partner Sham Lal Kishnani, who is 2nd respondent herein filed another Writ Petition No. 1424 of 1986 in the High Court against the Port Trust for quashing the communication dated 30th May, 1986, referred to above, under which the Port Trust had asked the 1st respondent to furnish the bank guarantee or a demand draft to the extent of 80% of the demurrage fees claimed by the Port Trust and for compelling the Port Trust to honour the detention certificates issued by the customs authorities pursuant to the order, dated 24th April, 1986 and to permit the clearance of the goods without payment of demurrage and without insisting upon the furnishing of a bank guarantee or a demand draft, as stated above. They also asked for an interim order to the effect that pending hearing and final disposal of the said writ petition, the Port Trust should forthwith honour the detention certificates issued by the customs authorities and allow the clearance of the goods without payment of demurrage and without insisting on the bank guarantee or the demand draft. In that writ pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nments were cleared by the 1st respondent on 5th July, 1986 on payment of an aggregate amount of ₹ 49,510.50 paise for the charges of the Port Trust in accordance with the order, dated 17th June, 1986 passed in Writ Petition No. 1424 of 1986 as against a total amount of ₹ 3,53,514.75 paise due to the Port Trust for wharfage and demurrage charges up to the dates of the clearance of goods. Thus a sum of ₹ 3,04,004.25 in respect of wharfage and demurrage charges of the said five consignments remains unpaid to the Port Trust. Aggrieved by the two orders passed on 26th June, 1986 in Appeal No. 512 of 1986 and Appeal No. 535 of 1986 the Port Trust has filed these two appeals by special leave. 5. The principal contention urged in both these appeals is that the High Court should not have directed the customs authorities to issue detention certificates without the Port Trust being made a party to the writ petition and in any event without passing an order duly providing for the payment of the wharfage and demurrage charges due to the Port Trust on the event of the 1st respondent failing in its contention in Writ Petition No. 122 of 1986. It is urged that a mere undertak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ees, in special cases and for reasons to be recorded in writing, may exempt either wholly or partially any goods or vessels or class of goods or vessels from the payment of any rate or of any charge leviable in respect thereof according to any scale in force under the Act or remit the whole or any portion of such rate or charge so levied. The Port Trust has fixed the scale of rates charged at the docks. A booklet containing the said rates which are revised up to 10-1-1985 is produced before the Court. Section III of the said booklet which commences at Page 14 thereof contains the Docks scale of rates fixed by the Port Trust. In consultation with the customs authorities, the Port Trust has provided for the grant of concession in the matter of payment of demurrage charges on the issue of detention certificate by the customs authorities. Section III-A(c) of the said booklet deals with the demurrage fees chargeable by the Port Trust. Proviso (d) to the said clause (c) states that the goods detained by the customs department for special examination involving analytical or technical tests other than the ordinary process of appraisement will be exempt from demurrage fees during such p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned for the purpose. (d) Where the goods are detained for PHO formalities, the certificate will cover the period stretching between the date of drawal of the sample by the PHO and the date of his test results, and (e) In cases where samples have been drawn from the imported consignments by the Assistant Drugs Controller for ensuring compliance with the provisions of Drugs and Cosmetics Act, 1940 and where the Assistant Drugs Controller is of the opinion that release cannot be allowed against a letter of guarantee pending tests. The said public notice also states that detention certificates will not be issued in the following types of cases : (a) Time taken by the Custom House Laboratory for analytical/chemical testing of samples drawn from the consignments, since the facility of clearing the goods on bond in terms of Section 18 already exists. (b) Samples drawn from the imported consignments by the Assistant Drugs Controller for ensuring compliance with the provisions of Drugs and Cosmetics Act, 1940 and for being forwarded to the Central Drugs Laboratory, Calcutta, as the importers can avail of the facility of clearing the goods against letters of guarantee and ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... directed the customs authorities to issue detention certificates in respect of the consignments in question. In doing so while the High Court had safeguarded the interests of the customs authorities by its earlier orders by directing the 1st respondent to furnish a bank guarantee in respect of the duty payable to them, in respect of the demurrage charges payable to the Port Trust the High Court merely directed an undertaking to be given in favour of the High Court. In the ordinary course, The High Court should have directed the 1st respondent to furnish bank guarantee in respect of the demurrage charges payable to the Port Trust in the event of the 1st respondent being held to be in default ultimately. 11. It is, however, to be observed that before compelling the customs authorities to issue a detention certificate, the High Court should have issued notice to the Port Trust which was vitally interested in securing its own interests as regards the demurrage charges recoverable by it under law. This was necessary because on the production of the detention certificate issued by the customs authorities the Port Trust was under an obligation to permit the clearance of the goods witho ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
