TMI Blog2001 (4) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... s given by the Delhi High Court on 18-1-1999. The goods in question, having already been directed to be released, without the payment of the demurrage charges, the importer must have got the goods released. Having regard to the fact situation of the present case, it would be meet and proper for us to direct the Shipping Corporation and Container Corporation, if an application is filed by the customs authorities to waive the demurrage charges. The appeal is disposed of accordingly. - 2681 of 2001 - - - Dated:- 10-4-2001 - G.B. Pattanaik, S.N. Phukan and B.N. Agarwal, JJ. [Judgment per : Pattanaik, J.] - Leave granted. 2.In this batch of appeals, a common question of law having arisen, they were heard together and are being disposed of by this common judgment. The question for consideration is whether the appellant, who under the terms of the contract between him and the owner of the goods, having a lien over the goods, until the dues are paid can be forced to release the goods, without charging any demurrage, merely because the customs authorities issued a detention order for a specified period ? We would discuss the question in relation to the facts in the case between ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on the basis of the same, raw materials could be imported without payment of any duty. According to the owner, under the licence, thus issued by the Controller of Imports and Exports, entitling import of raw materials without payment of duty, the customs authorities committed error in proceeding with the confiscation proceedings and ordering confiscation as well as levying penalty. The customs authorities as well as the Controller of Imports and Exports had been arrayed as party respondents in the writ petition. Both of them as well as Union of India resisted the claim of the owner, who had imported the goods in question. The High Court disposed of the writ petition by judgment dated 9th September, 1994, quashing the order of the Additional Collector of Customs dated 10th August, 1990 as well as the order of the Customs, Excise and Gold (Control) Appellate Tribunal dated 21st March, 1991 and directed the Collector of Customs to release the goods forthwith. The High Court also further held that since the action of the customs authorities is illegal, the goods in question will have to be released to the owner without payment of any detention or demurrage charges by the owner. Needles ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithout payment of the detention and demurrage charges. The High Court, therefore, called upon the customs department as well as the two corporations, who are the carriers to sort out the matter within a specified period and further held that if any detention or demurrage charges are payable, the same shall be paid by the customs department within three weeks. It further directed the carrier of the goods, including the appellant to release the goods after the customs department pays the detention/demurrage charges. Notwithstanding the aforesaid order, the goods not being released, when a fresh contempt petition was filed, registered as CCP No. 89/99, the High Court issued notice on 25-2-1999, calling upon the alleged contemnor to file their reply by 11th March, 1999. Against the initiation of the aforesaid contempt proceeding, the Shipping Corporation of India filed SLP No. 3391/99. The order dated 18-1-1999 was also assailed by the Shipping Corporation, which was registered as SLP No. 5001/99. The Container Corporation of India filed a special leave petition on identical circumstances and raising identical question, which is SLP No. 9021/99. The Union of India also assails the orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1604/91, specifically holding that the goods in question be released without payment of demurrage or detention charges and the further finding to the effect that the order of the customs authorities in confiscating and levying penalty is illegal and invalid, the importer cannot be made liable to pay the demurrage and detention charges. It is the further submission of the importer that notwithstanding the clear directions of the High Court, non-release of goods was a gross violation of the Court's order and, therefore, the appropriate authorities should be suitably dealt with. 4.In view of the submissions made at the Bar appearing for different parties, referred to earlier, the first question that arises for consideration is whether in the case in hand, the importer of the goods can be made liable to pay any demurrage/detention charges ? It is undisputed that under the terms and conditions of Bills of Lading the carrier had a lien over the goods until all the dues are paid and the goods having been kept, not being released, the corporation carrier was entitled to charge demurrage charges. But in view of the specific directions of the Delhi High Court in the writ petition filed ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by the Commissioner of Customs until they are cleared for home consumption or are warehoused or are transhipped in accordance with the provisions of Chapter VIII. (2) The person having custody of any imported goods in a customs area, whether under the provisions of sub-section (1) or under any law for the time being in force - (a) shall keep a record of such goods and send a copy thereof to the proper officer; (b) shall not permit such goods to be removed from the customs area or otherwise dealt with, except under and in accordance with the permission in writing of the proper officer. (3) Notwithstanding anything contained in any law for the time being in force, if any imported goods are pilfered after unloading thereof in a customs area while in the custody of a person referred to in sub-section (1), that person shall be liable to pay duty on such goods at the rate prevailing on the date of delivery of an import manifest or, as the case may be, an import report to the proper officer under Section 30 for the arrival of the conveyance in which the said goods were carried." Under the aforesaid provision, the imported goods would remain in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Act as well as the Contract Act, since the claim of both, the Shipping Corporation and Container Corporation, charging demurrage for the space occupied for the goods, not being released, is on account of the contract between them. Under the Indian Bills of Lading Act, 1956, every consignee of goods, named in a Bill of Lading and every endorsee of a Bill of Lading, is vested with absolute right over the goods. The Bill of Lading is a well known mercantile document of title, which is transferred in the business world by endorsement passing to the endorsee, the title of the goods covered by such Bill of Lading. Clause (18) provides for payment of demurrage charges in case of non-clearance of goods within the free time available. The said clause is extracted hereinbelow in extenso : "Clause 18 - Delivery of goods in Container : If receipt of goods in container(s) is not taken by the merchant within 48 hours after discharge from the vessel (or after the arrival of the goods at place of delivery if named herein) the carrier shall be at liberty at his discretion either to unpack the container(s) and to put the goods in safe on behalf of the merchant and at the merchant's risk and expens ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... clause in the Bill of Lading means, the Shipping Corporation of India Limited and/or associated company on whose behalf the Bill of Lading has been signed. 6.The two provisions of the Contract Act, on which Mr. Dave, appearing for the appellant, strongly relied upon, may now be noticed. Section 170 is the right of lien of the bailee for the services rendered in respect of the goods, and the bailee has right to retain the goods until he receives due remuneration for the services he has rendered. Section 171 is the General lien of bankers, factors, wharfingers, attorneys and policy brokers; who also retain as a security, the goods bailed to them. The contention of Mr. Dave, for the appellant is the right of the appellant to claim demurrage charges in respect of the goods, which is in his custody, the said goods not being released, within a specified period, flows from the terms and conditions of the contract between the importer and the corporation and that right cannot be taken away by issuance of a detention certificate by the Customs authorities under the provisions of the Customs Act and as such even if a Court directs that the importer is not liable to pay the demurrage charg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ocally conferred power on the appellant to retain the goods, until the dues are paid. Such rights accruing in favour of the appellant cannot be nullified by issuance of a certificate of detention by the customs authorities unless for such issuance of detention certificate any provisions of the Customs Act authorises. We had not been shown any provisions of the Customs Act, which would enable the customs authorities to compel the carrier, not to charge demurrage charges, the moment a detention certificate is issued. It may be undoubtedly true that the customs authorities might have bona fide initiated the proceedings for confiscation of me goods which however, ultimately turned out to be unsuccessful and the Court held the same to be illegal. But that by 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... synthetic waste (soft quality), though the customs authorities detained the same, being of the opinion that they were prime fibre of higher value and not soft waste. On account of non-release, the imported goods incurred heavy demurrage charges but the customs authorities themselves gave an undertaking before the High Court that in the event the goods are found to be synthetic waste, then the Revenue itself would bear the entire demurrage and container charges. Further the Chief Commissioner of Customs, later had ordered unconditional release of goods and yet the goods had not been released. It is under these circumstances and in view of the specific undertaking given by the customs authorities, this Court held that from the date of detention of the goods till the customs authorities intimated the importer, the importer would not be required to pay the demurrage charges. But in that case 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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