TMI Blog2000 (9) TMI 82X X X X Extracts X X X X X X X X Extracts X X X X ..... n brief. They are : The petitioner-Company during the course of their trade activity, negotiated with M/s. Techno Imports Exports, Dubai for import of 43.43 M.T. of M.S. Scrap valued at Rs. 10,857.50 U.S. Dollars (C F) and the consignor has despatched the said goods to I.C.D., Hyderabad through two containers as per the Invoice No. TTE/240/6-3-1996. On receipt of the said goods at the destination, the petitioner Company has filed a Bill of entry No. 486/16-10-1996 under Customs Tariff No. 7204.29 furnishing the particulars as per Bill of Lading received from the consignor which described the goods as M.S. Scrap and the same is intended for melting purposes in the Induction furnace and claimed concessional rate of duty exemption as per the notification No. 36/96, dated 23-7-1996 (Sl. item No. 116) which envisages payment of 5% basic duty, additional duty (CVD) of 5% and special duty of 3% ad valorem. However, on visual examination of the said goods, the Customs authorities found that the goods in question are in the shape of pipes and in that view of the matter came to the conclusion that the said goods fall under Tariff Item 7306.90 and accordingly, the Customs authorities classi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for non-imposition of demurrage charges. The third respondent vide his letter dated 5-10-1999 granted such a Certificate. But, the Warehousing authorities represented by the Manager, CFS, Hyderabad, the fourth respondent herein did not release the goods, and on the other hand, insisted vide letter No. CWC/CFS/ KKP/Cus. Corresp. 99-00/599, dated 12-10-1999 that unless all storage charges are paid by the petitioner Company delivery of the goods cannot be made. In that view of the matter, the third respondent vide his letter C. No. S/8/Adjn./012/96-ICD, dated 20-11-1999 informed the petitioner Company that there is no provision in the Rules framed by the Central Warehousing Corporation for waiver of storage charges and directed the petitioner Company to clear the goods immediately. Thereafter wards, the petitioner Company vide its order dated 6-12-1999 informed the third respondent that the petitioner Company is not responsible for detention of the goods from 16-10-1996, and that it is entitled to the goods released without payment of demurrage charges in the light of the order of the CEGAT dated 29-6-1999 and also the Certificate for Clearance issued by the third respondent dated 5- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat the petitioner Company in law is obliged to pay the storage charges before taking delivery of the goods as per terms and conditions of storage. It is also contended that the Central Warehousing Corporation is not a party to the appeal filed by the Petitioner Company before the CEGAT and, therefore, the order made by the CEGAT dated 29-6-1999 does not bind the Central Warehousing Corporation, and that the CEGAT has not issued any direction to the fourth respondent to release the goods stored by the Petitioner Company without insisting payment of storage and demurrage charges. Further, it is contended by the fourth respondent that the Central Warehousing Corporation is a statutory authority created under Section 3 of the Warehousing Corporation Act, 1962 for providing storage of various goods in its godowns on payment of storage charges and that there is no provision either in the said Act or the Rules framed thereunder for waiving storage charges, and the respondents 1 to 3 have no legal authority to direct the fourth respondent to deliver the goods to the petitioner without insisting payment of storage and demurrage charges, the fourth respondent has also filed an additional co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the fourth respondent is bound to waive demurrages and release the goods to the petitioner Company in terms of the guideline contained in paragraph (15) of the standard set of guidelines in Circular No. 128/95-Cus., dated 14-12-1995. The learned Senior Standing Counsel would maintain that under no circumstance direction would go to the Customs authorities to pay the storage and demurrage charges at this stage, and only in the event of the petitioner Company paying storage and demurrage charges to the fourth respondent for seeking release of the goods, then, they may take appropriate legal action for reimbursement for those charges from the Customs authorities, if they are so entitled and advised. 8.Sri G. Ramachandra Rao, learned Counsel appearing for the fourth respondent while opposing the writ petition would contend that as per the decision of the majority in the case of International Airports Authority of India v. M/s. Gulab Impex Enterprises Ltd. - [1995 (77) E.L.T. 753 (S.C.) = 1995 (3) SCC 151] a statutory authority even if it is the custodian of the imported goods, because of the provisions of the Customs Act, would be entitled to charge demurrage for such goods in its ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t to pay demurrage for the periods for which the detention certificates had been issued. The Delhi High Court took note of the decision of an earlier Division Bench of that Court in the case of Trishul Impex v. Union of India [1992 (58) E.L.T. 182 (Del.) = 43 (1991) DLT 538] and took the view that since the Authority was the custodian on behalf of the Customs authorities, the Authority was not entitled to recover any amount on account of demurrage charges for the periods for which detention certificates had been issued. The Authority being aggrieved by the Judgment of the Delhi High Court preferred Civil Appeals to the Supreme Court. The majority of the Supreme Court allowed the appeals and set aside the Judgment and order of the High Court. S.P. Barucha J. speaking for the majority on consideration of the relevant provisions of the Customs Act and the case law on the point observed as under : None of these provisions entitles the Collector"41. of customs to debar the collection of demurrage for the storage of imported goods. They donot entitle him to impose conditions upon the proprietors of ports or airports before they can be approved as Customs ports or Customs airports. Sect ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a statutory authority even if it is the custodian of the imported goods, because of the provisions of the Customs Act or any other statute, would be entitled to charge demurrage for such goods in its custody and make the importer or consignee liable for the same even for periods during which he/it was unable to clear the goods from the Customs area, due to the fault on the part of the Customs Authorities or of other authorities who might have issued detention certificates owning such fault. In the case of International Airports Authority (supra) the Supreme Court has considered its earlier decisions in (i) Trustees of the Port of Madras v. Aminchand Pyarelal - (1976) 1 SCR 721; (ii) Board of Trustees of the Port of Bombay v. Indian Goods Supplying Co. - (1977) 3 SCR 343 and Board of Trustees of the Port of Bombay v. Jai Hind Oil Mills Co. - (1987) 1 SCR 932. In Aminchand Pyarelal's case (supra) the Customs authorities have detained the goods as the specifications in the import licence did not tally with the description of the imported goods. On a notice to show cause, the Customs authorities upon considering the explanation given, directed confiscation of the goods. In appeal, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n interests as regards the demurrage charges recoverable by it under law. 12.The principles which emerge from the decisions of the Supreme Court in International Airports Authority (supra) and its earlier decisions would suggest that no mandamus would lie to the Central Warehousing Corporation and its authorities to release the goods to the petitioner Company without payment of storage and demurrage charges. This position is made very clear by the Supreme Court itself in the case of International Airports Authority (supra) in paragraph (45) of the judgment which reads as follows : "The goods of the first respondent in this appeal were stored, pending their clearance by the Customs Authorities, at the Container Freight Station of the appellant, the Central Warehousing Corporation at Patparganj, Delhi. The Central Warehousing Corporation is established under the provisions of the Warehousing Corporations Act, 1962. The provisions of the Warehousing Corporations Act are substantially similar to those of the International Airports Authority Act, 1971 and the Major Port Trusts Act, 1963. What has been said above in regard to the International Airports Authority applies as well to th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the Central Government appearing for the respondents 1 to 3 Customs authorities in that regard is not tenable. 14.Reliance placed by the Customs authorities on the guidelines contained in paragraph (15) of the guidelines in Circular No. 128/95, dated 14-12-1995, in our considered opinion, is totally misconceived and that guidelines is not applicable to the facts of this case. The respondents 2 and 3 along with counter affidavit have produced a copy of the Circular No. 128/95, dated 14-12-1995. As could be seen from the preamble of the Circular itself, those guidelines are applicable only to establishments in private sector but not to the establishments in public sector. Secondly, as rightly contended by the fourth respondent in additional counter affidavit dated 21-8-2000, in the Public Notice No. 12/91, dated 18-1-1991 issued by the Collector, Customs and Central Excise, Hyderabad there is no clause which empowers the Customs authorities to direct the Central Warehousing Corporation and its authorities not to collect the storage charges and other dues for the periods the goods are detained by the Customs authorities. On the other hand, Clause 4.11 of the above Public No ..... X X X X Extracts X X X X X X X X Extracts X X X X
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