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TMI Blog2005 (5) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Trial Judge passed orders behind the back of the Union of India. The Appeal Court by its judgment and order pending hearing of the matter afresh, gave interim relief to the petitioner allowing to re-export the goods upon payment of 50 per cent of the demurrage charges with the Port authorities without prejudice to its rights and contention. The balance 50 per cent shall be paid by the Customs authorities again without prejudice to the rights and contentions of the parties. 2.On several occasions the fact of the case was recorded by the learned Trial Judge at the interlocutory stage and then the Appeal Court while dealing with appeal against the interim order and finally in the earlier conclusive decision by the learned Trial Judge followed by the Appeal Court and the same is also stated in gist as follows : The petitioner is a Singapore based Company and in terms of the contract entered into by and between the petitioner-company and one M/s. M.K. Enterprises, the Respondent No. 8 herein, shipped consignments of 6 x 20 ft. containers of Electrolytic Copper Wire Rods and raised 6 invoices. The petitioner-company shipped the goods to be offloaded at the Port of Calcutta. Bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uthorities should be paid by the Customs Authorities. On 14th January this matter was moved before the learned Trial Judge. His Lordship Mr. Justice A.N. Ray (as His Lordship then was) was pleased to give direction for filing affidavit. However, within the stipulated date no affidavit-in-opposition was filed by the Union of India but on the adjourned date His Lordship Mr. Justice Ray was pleased to give interim relief pending decision of the matter on affidavit again. By this interim order His Lordship allowed the writ petitioner upon giving an undertaking to indemnify the respondent against any claim to re-ship the goods in Singapore. The Customs authorities was also directed to issue detention Certificate so that the writ petitioner was made liable to pay demurrage either to the Calcutta Port or to any other authority. Such Detention Certificate shall be issued within 48 hours of the undertaking mentioned above. Union of India preferred an appeal against the aforesaid judgment and order of Justice Ray and such appeal was dismissed by the Appeal Court affirming the order of the learned Trial Judge on 25th August, 1994. After the decision or the Appeal Court on 27th October, 1994 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le for not allowing the writ petitioner to re-ship in spite of repeated representation and request being made. There has been no justification either lawful or otherwise for not taking steps timely by the Customs authorities it was their sheer negligence and such negligent act has helped demurrage charges to be accrued. Even after passing of the order by the learned Trial Judge at the interim stage and affirmed by the Appeal Court the respondent customs authority did not take prompt action to enable the writ petitioner to re-ship. Had it been allowed to be done, then this detention charges would not have accrued. The Port authority also cannot ask the writ petitioner to pay the demurrage charges as the same can be levied and realized if there has been any failure or laches or lapse on the part of the importer or exporter. 8.Alternatively, he submits that even if it is held by this Court that demurrage charges is to be paid the same must be paid or to be reimbursed by the Customs authorities. 9.He referred in support of his argument to a judgment of the learned Single Judge of this Court dated 17th June, 2002 rendered in case of N. Didwania v. Commissioner of Customs (Cal.) Port a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In the affidavit-in-opposition the Customs authority initially took stand that appropriate proceedings is contemplated to be initiated relating to the goods as it was suspected to have been misdeclared as to its value. For these reasons the goods were not allowed to be removed for re-shipment. It is now settled position of the law that if the goods are not removed from the port premises within free time then the demurrage and/or detention charges will automatically accrue and the owner or importer of the goods are liable to pay unless it is waived in exercise of power granted by the statute by the Port authority. The Port authority at no point of time was in a mood to waive the same. 15.Therefore, the payment of demurrage charges is sine qua non for removal of the goods as the Port authority can claim lien over the goods for its charges. There has been no dues on account of Customs nor there was any proceedings under the Customs Act or any other statutory provision. The Customs made various enquiries before they decide to allow re-shipment. Stand taken in the affidavit-in-opposition of the Customs authority appears to be totally baseless and to cover up its own laches. As the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Mills - 1998 (100) E.L.T. 323 (S.C.) = (1998) 9 SCC 647 and Grandslam International case reported in 1995 (77) E.L.T. 753 (S.C.) = (1995) 3 SCC 151. 17.In view of the above pronouncement of the Supreme Court I think as rightly contended by Mr. Roychowdhury the port authority is entitled to legitimately the demand of payment of detention and demurrage charges. 18.The learned Additional Solicitor General Mr. Kapoor has rightly said under the provision of Major Port Act, 1963 and under Rules and Regulations framed thereunder it is the primary liability of the importer to pay the demurrage charges. But in this case the situation and circumstances is otherwise. The issue now has crystallized that in order to get the goods released, who is to pay the detention charges because all the parties are before me. Each and every day the demurrage charges is accruing and this could have been arrested had the parties accepted at least the direction of the later Appeal Court in 1997 itself. Under the provision of the Customs Act the Customs authorities are not immuned from incurring the demurrage charges in a case where it is found later on that detention of the Customs authorities are found to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iven the writ petitioner adopted delaying tactics firstly asking for the particulars of the dues, then filing an application for clarification and then the matter was allowed to remain pending and ultimately the same was dismissed for non-prosecution. Had the writ petitioner tendered the 50 per cent of the demurrage charges then perhaps, he could have been relieved from payment of these dues. A person who complains of negligence of another person cannot be allowed to take advantage of his own negligent act. This Court has been called upon to decide the role played by the respective authorities in not clearing the goods negligently. So, I feel the writ petitioner is certainly liable to pay 50% of the demurrage charges from the date on and from 16th January, 1997 till 18th February, 2004. The balance demurrage charges from the date of accrual till 18th February, 2004 has to be shouldered by the Customs authorities. However, it would be open for the Customs authorities to make an application for waiver of the demurrage charges. In the event such application is made the Port authority shall consider the same in accordance with law as early as possible. If such waiver is not granted in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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